De facto discrimination in WTO law: National and most-favoured nation treatment – or equal treatment?

Abstract:

The fundamental obligation of the Members of the World Trade Organisation (WTO) to accord each other most-favoured-nation and national treatment outlaws both overt and implicit discrimination. Modern disputes typically deal with national measures not containing an explicit reference to origin, and they potentially touch on any domestic legislation. The WTO jurisprudence to date offers no conclusive evidence on whether such measures comply with the non-discrimination rules when they burden products or services of different origin to the same extent. The recent Asbestos dispute showed two opposing approaches to this question at the panel and Appellate Body levels and may offer some clarification for the future. This paper reviews the interpretation of 'less favourable treatment' in the history of the General Agreement on Tariffs and Trade (GATT) and the WTO, draws a short comparison to the European Communities and explores further implications.