The Unbearable Lightness of Likeness

15 Pages Posted: 29 Mar 2012

See all articles by Joost Pauwelyn

Joost Pauwelyn

Graduate Institute of International and Development Studies (IHEID); Georgetown University Law Centre

Date Written: September 2006

Abstract

In Some Thoughts on The Concept of ‘Likeness’ in the GATS, Mireille Cossy (of the WTO Secretariat) advocates the re-introduction of an “improved” aims-and-effects test in the GATS. Under such test “elements related to the ‘regulatory context’ of the service and/or of the supplier should play a role in relation to GATS national treatment”. One consequence of such test, Cossy argues, is that it “would almost inevitably entail the introduction of some kind of proportionality or necessity test” within the very definition of GATS national treatment. This comment raises two points. First, although Cossy follows the conventional wisdom of both WTO jurisprudence and commentators, the core of any non-discrimination principle does not lie in the threshold question of “likeness” (are two services/suppliers “comparable”?), but in the substantive test of whether the government, either de jure or de facto, favors domestic over foreign services or service suppliers (does the regulation, either in law or in effect, distinguish based on national origin). This test of what constitutes de facto discrimination – a weighing exercise which, in this author’s view, should include consideration of both the objective purpose of the regulation and its effects -- has received surprisingly little attention in international trade law. Second, Cossy’s claim that trade in services (GATS) needs “something different” than trade in goods (GATT) – i.e. that GATS national treatment should focus on regulatory purpose and protectionism (improved aims-and-effects), but that this “would be without prejudice to the approach taken under the GATT” -- is unconvincing and unrealistic. If aims-and-effects are to return, in whatever guise, they should return – and are already resurfacing -- in both GATS and GATT.

Keywords: discrimination, national treatment, like products, GATS, GATT, WTO

Suggested Citation

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

Joost Pauwelyn (Contact Author)

Graduate Institute of International and Development Studies (IHEID) ( email )

PO Box 136
Geneva, Geneva CH-1211
Switzerland

HOME PAGE: http://graduateinstitute.ch

Georgetown University Law Centre ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

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