Principles of Non-Discrimination after US – Clove Cigarettes, US – Tuna II, US – COOL and EC – Seal Products and their Implications for International Investment Law

Abstract

Recent disputes have clarified principles of non-discrimination under WTO law. US – Clove Cigarettes clarifies that under the Agreement on Technical Barriers to Trade, a regulation modifying conditions of competition to the detriment of imported products will not be discriminatory if that detrimental impact stems exclusively from a legitimate regulatory distinction. This test was applied in US – Tuna II and US – COOL, which begin to clarify how to judge whether a regulation is based exclusively on a legitimate regulatory distinction. EC – Seal Products clarifies that in the context of the General Agreement on Tariffs and Trade (GATT) 1994, whether a measure is legitimate in regulatory terms is to be adjudged solely under the general exceptions and not provisions governing non-discrimination. Although generalizing about the implications of WTO disputes for investment treaty interpretation is perilous, these disputes raise new questions, particularly for interpretation of investment chapters in trade agreements.