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Non-Discrimination Standards

62 posts

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

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,

"Likeness" in the Tuna-Dolphin Panel Report

We're not even done talking about U.S. - Clove Cigarettes, but now we have a new TBT panel report: U.S. - Tuna II (Mexico) (the new tuna-dolphin case). I'm overloading on TBT Agreement issues! Here's an excerpt from the panel's findings

The "Likeness" of Cloves, Menthols and Candy Flavored Cigarettes

Here's more from Todd Tucker on the Clove Cigarettes ruling: While menthol and clove are both "flavored cigarettes," so are cola- and candy-flavored cigarettes. The U.S. argued, plausibly in my mind and to paraphrase Big Bird, that "one of these things is not

Some Very Old "Likeness" Arguments

I'll tell you how old at the end of the post. The issue was whether Russia hemp was a "like article" to Manila hemp, in the MFN context. Here's one side of the argument: The turning point in the treaty will be found in

U.S. Fuel Efficiency Standards: Trucks vs. Cars

From Reuters: The Obama administration has reached a compromise with automakers on a new fuel economy target for cars and trucks, ending months of negotiations on this pivotal mandate for the auto industry. Automaker fleets will now have to average 54.5 miles per gallon by 2025, according to people

Intent, Export Contingency, and National Treatment

Do the Appellate Body's statements in EC - Aircraft on de facto export contingency tell us anything about the National Treatment standard? The Panel's findings had seemed to place a lot of emphasis on the reasons for the measure as the basis for determining whether export contingency

The Scope of the MFN Standard

When it comes to non-discrimination, National Treatment gets most of the attention. But MFN can be interesting, too. Here's a passage from the U.S. third participant submission in the EC - Fasteners appeal: 24. A number of WTO rules explicitly recognize that, in the context of AD