Trade, Investment and Intellectual Property
Edited by Anselm Kamperman Sanders
Chapter 4: National treatment under the TBT Agreement
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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