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

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

JEL Classification: F13, F15, F21, K33