The Interpretation of ‘Treatment No Less Favourable’ Under Article III:4 of the GATT 1994 and Article 2.1 of the TBT Agreement: A Comparative Analysis

Abstract

In recent years, the World Trade Organization has witnessed several disputes dealing with the national treatment obligation under Article 2.1 of the Agreement on Technical Barriers to Trade. This obligation has not been interpreted in the same way as in Article III:4 of the General Agreement on Tariffs and Trade of 1994. Indeed, the Appellate Body has developed a legal standard for the term ‘treatment no less favourable’ under Article 2.1 of the TBT Agreement that differs from the one in Article III:4 of the GATT 1994. After describing the different legal standards under these two provisions and their respective application in the case law, this article reflects upon several questions. In particular, it examines the treatment of de jure/de facto discrimination under the TBT Agreement as compared to the GATT 1994, the exact meaning of ‘legitimate regulatory distinction’ as a non-treaty term created by the Appellate Body for purposes of Article 2.1 of the TBT Agreement, and the implications of the different rules on burden of proof for a complainant’s legal strategy when faced with discriminatory technical regulations.