Non-discrimination in international trade in services: 'likeness' in WTO/GATS
In: Cambridge international trade and economic law
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In: Cambridge international trade and economic law
In: Legal issues of economic integration: law journal of the Europa Instituut and the Amsterdam Center for International Law, Universiteit van Amsterdam, Band 38, Heft 2, S. 115-141
ISSN: 1566-6573, 1875-6433
The extent to which market participants are in a competitive relationship constitutes a key element both in competition law and in international economic law. Competition law practice has developed refined economic instruments designed to define relevant markets on the basis of demand substitutability, supply substitutability and potential and future competition. In contrast, many fields of international economic law, such as trade and investment protection, fail to assess actual market situations. This article identifies conceptual differences and similarities between the legal instruments of the two fields of law in order to analyse whether competition law theories of defining relevant markets could also be applied in international economic law.
In: The international & comparative law quarterly: ICLQ, Band 60, Heft 4, S. 831-865
ISSN: 1471-6895
AbstractThe principle of non-discrimination constitutes a corner-stone in different fields of international economic law, notably international trade in goods and services as well as intellectual property and investment protection. While its basic rationale appears to be straightforward, the application of the different legal elements which constitute a non-discrimination obligation has proven to be most challenging. Adjudicating bodies have been applying different interpretations and standards with regard to the legal elements of 'less favourable treatment', 'likeness' and 'regulatory purpose', which leads to a high fragmentation of the non-discrimination principle in international economic law. This article maps out the different theories for each of these elements on the examples of WTO law, NAFTA, bilateral investment treaties (BIT) and EU law and analyses how these theories affect the scope and liberalizing effect of the non-discrimination obligation. The article then attempts to develop a coherent factor-based application of non-discrimination rules suitable for all fields of international economic law. The article submits the theory that the elements of non-discrimination should not be applied as strict legal conditions which must be proven by a complainant, but as a range of factors which are weighed and balanced by the adjudicating bodies.
In: Cambridge international trade and economic law
"The principle of non-discrimination is fundamental to the regulation of international trade in goods and services. In the context of trade in goods, the concept of 'like products' has become a key element of the legal analysis of whether a trade obstacle violates GATT non-discrimination obligations. The equivalent concept of 'like services and service suppliers' in GATS rules on non-discrimination has received little attention in WTO jurisprudence. In light of the remaining uncertainties, Nicolas Diebold analyses the legal problems of the GATS 'like services and services suppliers' concept using a contextual and comparative methodology. The 'likeness' element is not analysed in isolation, but in context with 'less favourable treatment' and regulatory purpose as additional elements of non-discrimination. The book also explores how far theories from non-discrimination rules in GATT, NAFTA, BITs and EC as well as market definition theories from competition law may be applied to 'likeness' in GATS"--Provided by publisher
In: Schriften zum Energierecht Band 8
In: THE PUBLIC COMPETITION ENFORCEMENT REVIEW, SECOND EDITION, pp. 404-414, Shaun Goodman, ed., Law Business Research, 2010
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