Defining Nondiscrimination Under the Law of the World Trade Organization

Abstract:     
This article addresses a basic question under the law of the World Trade Organization (WTO): how should nondiscrimination be defined for the purpose of a given WTO provision? Despite its central importance to the world trading system, the concept of nondiscrimination remains highly elusive, and WTO tribunals have yet to develop clear tests to determine what constitutes discrimination under various WTO provisions. The article proposes an analytical framework for the assessment of the "likeness" or "similarity" issues, which are the key to determining whether discrimination exists. This analytical framework is built upon the "similarly situated" paradigm suggested by the WTO Appellate Body in the case of EC-Preferences, and draws upon general moral philosophy on the concepts of equality and similarity, as well as nondiscrimination jurisprudence developed under the equal protection and commerce clauses of the United States Constitution. Applying this framework, the article examines WTO judicial interpretations of nondiscrimination in a variety of treaty contexts, including those concerning "like products", "like services", "like conditions", and "similarly situated countries" under GATT, GATS, SPS, and the Enabling Clause. This analysis exposes gaps, ambiguities and inconsistencies in existing WTO jurisprudence. Moreover, it demonstrates that through the use of the proposed framework it becomes possible to interpret various nondiscrimination requirements of the WTO in a conceptually coherent and policy-consistent manner.

Number of Pages in PDF File: 84

Keywords: WTO, nondiscrimination, equality, like product, like conditions, Enabling Clause, GATT, GATS, SPS, Commerce Clause

Accepted Paper Series