The Principle of National Treatment in International Economic Law

The Principle of National Treatment in International Economic Law

Trade, Investment and Intellectual Property

European Intellectual Property Institutes Network series

Edited by Anselm Kamperman Sanders

The principle of national treatment, or the non-discrimination clause, is a principle that applies across many fields of international economic law. This book offers a unique horizontal examination of the principle as it applies within international trade law, international investment law, and intellectual property law. An invaluable conclusion draws together the common strands and highlights the variations in application between these fields.

Chapter 4: National treatment under the TBT Agreement

Arthur E. Appleton

Subjects: law - academic, european law, intellectual property law, international economic law, trade law, international investment law

Extract

There is a danger when discussing non-discrimination in general, and national treatment more specifically, of taking an overly formulistic view of the subject (apply the traditional four-part test and look for less favourable treatment) and divorcing the discussion from business reality or societal concerns. Ignoring commercial or policy concerns undermines the legitimacy of the international trade system. This chapter seeks to bridge this gap by viewing national treatment under Article 2 of the Agreement on Technical Barriers to Trade (TBT Agreement), that is, within the context of central government regulations, from a commercial and policy perspective, as well as an academic perspective. It is important not to forget the commercial or business perspective in trade disputes since a national treatment discussion is really about making sure that imported products in ‘actual competition’ with like domestic products do not receive less favourable treatment to the detriment of business interests. If two products are not in competition, they should not be considered like, for regulatory purposes. We see the importance of establishing whether two products compete in the Japan – Alcoholic Beverages II decision interpreting likeness under Article III:2 of GATT 1994, in EC – Asbestos interpreting likeness within the context of Article III:4 of GATT 1994, and in US – Clove Cigarettes interpreting likeness within the context of Article 2.1 of the TBT Agreement.

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