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Non-Discrimination Standards

64 posts

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

National Treatment in the NAFTA Chapter 11 Cargill Award

The Cargill v. Mexico NAFTA Chapter 11 award is available here. It was sent to the parties in September 2009, but it is just now being released publicly. In this post, I'm just going to make a quick point about the National Treatment analysis. When I first started

Ontario's Dairy Restrictions under Canada's Agreement on Internal Trade

Sometimes when you just can't get enough international trade law, you have to look to domestic trade law. I've talked about the U.S. dormant commerce clause jurisprudence before. Now I see an opportunity to move North, with some discussion of the Canadian Agreement on Internal

National Treatment in the Renco Investor-State Complaint

And here's the final non-discrimination post of the day. U.S. company Renco Group, on its own behalf and on behalf of its affiliate Doe Run Peru (DRP), has brought an investor-state claim against Peru under the U.S.-Peru Trade Promotion Agreement. The Notice of

Non-Discrimination under GATT Article III:2, first sentence

Here's the third non-discrimination post of the day. Looking over the U.S. responses to the Panel's questions in Philippines - Spirits (DS396/403), it was striking how little discussion of intent/effect issues there was, in comparison with Clove Cigarettes and Tuna, the subject of

National Treatment: Imports from Complainant versus All Imports

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

The Role of Effect in Non-Discrimination: The Clove Cigarettes Case

There's so much to say about the non-discrimination issue right now that I'm not quite sure where to begin. I've got four posts here today, and for DSC subscribers I also did one on the DSC blog for the Tuna case. To start

The Role of Intent in WTO Non-Discrimination Obligations

I thought this was a good question from the panel in the U.S. - Tuna Labeling (DS381) dispute: 111. To the United States: Please clarify the relevance of your arguments relating to the justification of the measure in terms of dolphin protection, such as the arguments related to the effects

More on Article III:2, first sentence discrimination in Philippines - Spirits

Recall this post on the EU position in the Philippines - Distilled Spirits (DS396,403) case in relation to Article III:2, first sentence, where I characterized the EU argument on the discrimination aspect of this standard as follows: "the discriminatory effect (or disparate impact or disproportionate disadvantage or asymmetric