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Non-Discrimination and the Pillars of International Economic Law – Comparative Analysis and Building Coherency

Nicolas F. Diebold University of Lucerne Date Written: June 30, 2010 Abstract This working paper was presented at the Second Biennial Global Conference of the Society of International Economic Law (SIEL) 2010 in Barcelona, available on SSRN and as IILJ Emerging Scholars Paper 18 (2010). The final version is published uner the title 'Standards of Non-Discrimination in International Econocmic Law' 60 International and Comparative Law Quarterly (2011), 831-865. The principle of non-discrimination constitutes a corner-stone in different fields of international economic law, notably international trade in goods and services as well as intellectual property and investment protection. While its basic rationale appears to be straight forward, the application of the different elements which constitute a non-discrimination obligation has proven to be most complicated. Due to the high fragmentation in international economic law, adjudicating bodies are applying different interpretations and standards with regard to ‘less favourable treatment,’ ‘likeness,’ ‘regulatory purpose’, and ‘necessity’. This article shows the different theories for each of these elements on the examples of WTO law, NAFTA, investment protection and EU law and demonstrates how these theories affect the scope and liberalizing effect of the non-discrimination obligation. The article then attempts to develop a coherent factor-based application of non-discrimination rules suitable for all fields of international economic law. The article submits the theory that the elements of nondiscrimination should not be applied as strict legal conditions which must be proven by a complainant, but as a range of soft-factors which may be weighed and balanced by the adjudicating bodies. Keywords: Non-Discrimination, National Treatment, Like Products, Like Circumstances, Less Favourable Treatment, WTO, GATT, GATS, NAFTA, Bilateral Investment Treaties

The Unbearable Lightness of Likeness

Pauwelyn, Joost, The Unbearable Lightness of Likeness (September 2006). Available at SSRN: https://ssrn.com/abstract=2030940 or http://dx.doi.org/10.2139/ssrn.2030940

likeness

"The existing (WTO) case-law on non-discrimination indicates that when defining likeness for the purpose of assessing regulation, one should rather focus on the interchangeability of the services by applying a cross-price elasticity test. In Japan – Alcoholic Beverages II, the Panel has stated explicitly that “the appropriate test to define whether two products are ‘like’

International Approach to Liberalisation of Trade in Financial Services - doctoral thesis on Financial Services Regulation

This is a high quality, law book by Professor Bart De Meester. whose writing style is very readable on trade deals regulation of financial services- especially banking, very relevant to the mess we find ourselves in today.. Especially see: INTERNATIONAL APPROACH TO LIBERALISATION OF TRADE IN BANKING SERVICES see CHAPTER III.2 LIMITATIONS ON THE RIGHT OF WTO MEMBERS TO REGULATE THE BANKING SECTOR