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Non-Discrimination Standards

58 posts

Non-Discriminatory Treatment of Digital Trade Products in the EU-NZ FTA

Last year, I did some blog posts and a short paper that looked at the wording of the provision in digital trade chapters/agreements on "Non‐ Discriminatory Treatment of Digital Products." The basic point was that the usual language in this provision refers to "digital products,"

Amicus Submission in EU - Palm Oil (DS600)

I'm posting here a long excerpt from an amicus submission in the EU - Palm Oil (DS600) case, co-authored by trade lawyers Stéphanie Noël and Clémentine Baldon. In my view, this submission sets out the correct way to think about GATT Article III, and I'm glad

Non-Discrimination under Section 301: Canadian Digital Services Taxes

This is from a USTR submission to the Canadian government on a proposed Canadian digital services tax: Thank you to the Government of Canada for this opportunity to comment. The United States has serious concerns about the Canadian Government’s plan to enact a Digital Services Tax (DST). The Canadian

GATT Article III:4 Less Favorable Treatment Issues in the EU - Palm Oil Case

In a series of TBT cases a while ago, the Appellate Body was confronted with defining the similar but not identical legal standards in TBT Agreement Article 2.1 and GATT Article III:4. Roughly speaking, its conclusion was that Article 2.1 required an examination of "regulatory purpose&

The U.S. Critique of the Appellate Body's GATT Non-Discrimination Jurisprudence

In its Report on the Appellate Body issued earlier this week, USTR makes the following point about the Appellate Body's non-discrimination jurisprudence: Articles I:1 and III:4 of the GATT 1994 and 2.1 of the TBT Agreement set out Members’ national treatment and most-favored-nation (“MFN”) obligations.

The Discrimination Standard under Section 301

This is from the Section 301 report on France’s Digital Services Tax issued by USTR earlier this week: A. France’s Digital Services Tax Discriminates Against U.S. Digital Companies The evidence collected in this investigation, including witness testimony, written comments, news reports, and expert commentary, indicates that the

Purpose in Non-Discrimination Obligations and Exceptions

In the Argentina - Financial Services Appellate Body report, circulated last Thursday, the Appellate Body has continued its push to keep certain non-discrimination obligations focused on the impact (or effect) of the measure, with any examination of the purpose (or objective or aim or intent) of the measure carried out

The Tuna/Dolphin Appellate Body 21.5 Ruling: A decision that could threaten the integrity and efficiency of WTO dispute settlement

As Susan Esserman and I pointed out in Foreign Affairs some years back, the WTO dispute settlement system is among the most advanced adjudicative mechanisms yet devised for international law. One of its innovative features is a means by which disagreements over compliance are themselves subject to resolution by the

Should There Be a Single Non-Discrimination Obligation for Trade in Goods?

A lot of the discussion on the Seal Products case in previous posts highlights the difficulty of reconciling the various WTO non-discrimination obligations: GATT Articles I:1 and III:4; GATT Article III:4 and TBT 2.1; the GATT Article XX chapeau and TBT 2.1; etc. This makes

Alan Argues ...

A couple days ago, Alan pointed out that treaty interpretation is more than just titles of provisions. And he's right, of course. In addition to the context (which is how I think of these titles), he refers to the text, the negotiating history, the intention of the parties,