National Treatment Principle Research Articles

The Role of International Law in Monetary Affairs

Monetary affairs have been a stronghold of national sovereignty, and international law is poorly developed in this field, which has been characterized by informal coordination. This article explores the theoretical underpinnings of monetary competition and the potential role of international law in framing such competition beyond institutional arrangements. We argue that, so far, the most important contribution of international law to financial stability has been made by an open and rule-based trading system of the World Trade Organization and the legal protection of investment. As to monetary cooperation, different models are discussed, ranging from harmonization and formal cooperation to predominantly informal, asymmetrical arrangements. While affirming the need for monopoly powers in the field, we argue that international monetary competition is the main tool in preventing and remedying the risks of abuse of monopoly powers inherent to national currencies. It should be framed accordingly within a system of multilayered governance. The article asks what can be learned from principles of competition and trade policies. It argues that principles of non-discrimination, in particular, national treatment and conditional most-favored nation, offer an important starting point in achieving a rule-based regulatory framework for stable monetary competition. Oxford University Press 2010, all rights reserved, Oxford University Press.

Should the WTO deal with e-trade taxation issues?

Electronic commerce may be a great equalizer that helps to reduce, or even to eliminate, distance-related barriers to trade, but it can also exacerbate a so-called ‘digital dividend’ vis-à-vis countries with technological and infrastructural deficiencies, especially developing countries. In the following we concentrate on trade distortion caused by taxation of e-trade in intangible goods. We believe this will have a particular ramification for the developing world. General Agreement on Trade in Services (GATS) provisions may be relevant to many concerns with respect to the regulations of e-commerce, such as online privacy protection, illegal or illicit content, cyber crime and fraud, en-forcement of contracts, consumer protection, and taxation. In this paper, we will focus our debate mainly on the issues of taxation of e-trade with respect to the two basic principles of the WTO, that is. the Most Favoured Nation (MFN) and the National Treatment (NT) principles.

Disciplining Canada's Interprovincial Barriers: The Subnational WTO Approach as Another Option with or beyond an Extended TILMA

This paper looks at a further option which thus far appears not to have entered the debate on the long-standing issue of interprovincial barriers. Labelled the subnational World Trade Organization (WTO) approach, it is based on the simple idea of seeking the agreement of the Canadian provinces (and WTO members) to extend existing WTO disciplines to the provincial level. This implies that the principles of Most Favoured Nation and National Treatment, as well as of WTO dispute settlement, would apply directly to interprovincial trade in goods and services through the 1994 General Agreement on Tariffs and Trade, and that the framework of the General Agreement on Trade and Services would allow for scheduling of commitments, including on labour mobility under mode 4. The Agreements on Subsidies and Countervailing Measures would also apply, as would all other WTO agreements.

Disciplining Canada’s Interprovincial Barriers: The Subnational WTO Approach as Another Option with or beyond an Extended TILMA

Dans cet article, j’examine une option, l’« approche infranationale de l’Organisation mondiale du commerce (OMC) », qui, jusqu’à maintenant, n’a pas été prise en compte dans le débat sur une question discutée depuis longtemps au Canada, celle des barrières interprovinciales au commerce. Cette approche se base sur une idée simple: tenter d’établir un accord entre les provinces (et les membres de l’OMC) pour appliquer les disciplines de l’OMC au commerce interprovincial. Cela aurait trois implications. Premièrement, les clauses de la nation la plus favorisée et du traitement national, ainsi que le processus de règlement des différends, utilisés par l’OMC, s’appliqueraient au commerce interprovincial des biens et services, sur la base de l’Accord général sur les tarifs douaniers et le commerce de 1994. Deuxièmement, le cadre de l’Accord général sur commerce des services permettrait de formuler les engagements à être souscrits, y compris sur la mobilité de la main-d’œuvre selon le mode 4. Enfin, tous les autres accords de l’OMC, comme l’Accord sur les subventions et les mesures compensatoires, s’appliqueraient également aux provinces.

Energy geopolitics and Iran–Pakistan–India gas pipeline

With the growing energy demands in India and its neighboring countries, Iran–Pakistan–India (IPI) gas pipeline assumes special significance. Energy-deficient countries such as India, China, and Pakistan are vying to acquire gas fields in different parts of the world. This has led to two conspicuous developments: first, they are competing against each other and secondly, a situation is emerging where they might have to confront the US and the western countries in the near future in their attempt to control energy bases. The proposed IPI pipeline is an attempt to acquire such base. However, Pakistan is playing its own game to maximize its leverages. Pakistan, which refuses to establish even normal trading ties with India, craves to earn hundreds of millions of dollars in transit fees and other annual royalties from a gas pipeline which runs from Iran's South Pars fields to Barmer in western India. Pakistan promises to subsidize its gas imports from Iran and thus also become a major forex earner. It is willing to give pipeline related ‘international guarantees’ notwithstanding its record of covert actions in breach of international law (such as the export of terrorism) and its reluctance to reciprocally provide India what World Trade Organization (WTO) rules obligate it to do—Most Favored Nation (MFN) status. India is looking at the possibility of using some set of norms for securing gas supply through pipeline as the European Union has already initiated a discussion on the issue. The key point that is relevant to India's plan to build a pipeline to source gas from Iran relates to national treatment for pipeline. Under the principle of national treatment which also figures in relation to foreign direct investment (FDI), the country through which a pipeline transits should provide some level of security to the transiting pipeline as it would have provided to its domestic pipelines. This paper will endeavor to analyze, first, the significance of this pipeline for India and then the geopolitics involved in it.

WTO agreement on government procurement: problems of correlation with national legislation on public procurement

Introduction. Bringing national legislation in line with the requirements of international agreements to which Ukraine is a party has been and remains an urgent problem of Ukrainian legislation. In addition to the problem of slow implementation of their provisions, in practice there are also situations when the norms of national legislation contradict the international obligations that Ukraine has assumed by ratifying the relevant agreements. The subject of research in this paper is the WTO Agreement on Government Procurement and its correlation with national legislation. Despite the fact that the issues outlined by us, namely, the correlation of the WTO Agreement on Government Procurement with the legislation of Ukraine, is extremely relevant, at the scientific level it has not been given sufficient attention. The purpose of the paper is to compare the legal analysis of the problems related to the correlation of Ukraine's international obligations under the WTO Agreement on Government Procurement and the national legislation of Ukraine to highlight the problematic aspects and provide possible solutions. Results. In the course of the study, the provisions of the WTO Agreement on Government Procurement were examined in detail, namely the main purpose, principles, and approaches that it expresses. The comparison with the norms of the national law on public procurement was made and it was concluded that the provisions on localization contradict the requirements of the Agreement, namely the principles of non-discrimination and national treatment. In addition, it was found that there are no exceptions to the application of the provisions of the Agreement in relation to Ukraine. Conclusion. In the course of the study, we came to the conclusion that the introduction of measures to stimulate the development of the national producers seems appropriate, but it is necessary that such measures do not contradict with the requirements of international treaties to which Ukraine is a party. Therefore, it is necessary to eliminate this contradiction at the level of legislation, considering national interests and risks associated with introducing certain measures. Since the Agreement was ratified by Ukraine without any exceptions aimed at protecting national producers, this significantly limits the government's ability to support national suppliers through public procurement procedures. The situation when the norms of laws contradict the international obligations of Ukraine is unacceptable, so this problem must be resolved.

Book Review: The Principle of National Treatment in the GATT: a Survey of the Jurisprudence, Practice and Policy, by Mattia Melloni. (Brussels: Bruylant, 2005)

Book Review: <i>The Principle of National Treatment in the GATT: a Survey of the Jurisprudence, Practice and Policy</i>, by Mattia Melloni. (Brussels: Bruylant, 2005)

Fundamental principles of the international protection system of intellectual property rights and the applications

Legal principle, which underlies the value of the legal system, is supposed to be the origin and basis of concrete legal rules. It has also resulted from abstracting and summarizing the value and spirit of these legal rules. In light of the universality and hierarchy of legal principle, the principles of the international protection system of intellectual property rights (IPR) can be divided into the following two types: one is the fundamental principles applied to the what, why and how a legal system shall be constructed, such as principles of sovereignty, equality and mutual benefit, joint development, and international cooperation, which also can be expressed as the principles of sovereignty, international coordination and cooperation, fairness and justice. The other type includes those existing in the legal system and capable of being applied directly, such as the principle of national treatment, principle of minimum standard, principle of independence (for industrial property right), principle of independent protection (for copyright), principle of compulsory implementing patent (for patent right) and doctrine of priority (for industrial property right), etc. In my opinion, the principles of the international protection system of IPR shall follow the latter model, indicating that they shall be provided and written in the international conventions on the grounds that they can be applied directly, and that they can be universally applied to the whole international protection system of IPR instead of exclusive application to one certain system. Hereupon, the author believes that principles concerning the international protection system of IPR should include the principles of national treatment, minimum protection standard and public interest.

From 'Non-Discrimination' to 'Reasonableness': A Paradigm Shift in International Economic Law?

Among the few basic legal instruments employed in international economic law for the promotion of trade and investment, the National Treatment (NT) principle and the reasonableness principle constitute the two predominant ones. While both norms deal principally with national measures of legislative, administrative or judicial nature taken to regulate the internal market, they appear to represent two quite different legal paradigms. By requiring each member to treat products and investors of the other member (at least) as well as it treats its own products and investors, the NT principle provides for a 'relative' standard of treatment. In other words, the NT principle does not guarantee a specific level of protection or that foreign products or investors will receive a 'fair' or 'reasonable' treatment. On the other hand, the reasonableness principle provides for an 'absolute' standard of treatment, in as far as it requires States to recognize to foreign products and investors a certain level of treatment independently of the treatment afforded to domestic products and investors. Although the concept of reasonableness may be given potentially a broad range of meanings, it usually refers to both substantive and procedural requirements, including concepts such as 'suitability', 'necessity', 'proportionality', 'transparency' and 'participation'. Accordingly, the reach of the reasonableness principle appears to be quite broad compared to that of the NT principle and the normative standards imposed on States by the former seem to bite deeper than those imposed by the latter. By focusing specifically on the experience of the WTO and NAFTA in promoting trade and investment across countries through the NT principle and the reasonableness principle (i.e., Articles III/XX GATT and 1102 NAFTA; Articles 2 TBT and 1105 NAFTA), this paper tries, first of all, to show that the two norms under consideration do not represent two completely different legal paradigms. On the contrary, the overlap between non-discrimination and reasonableness is quite broad and, depending on the actual drafting, it may even be total. Secondly, and without arguing for the total abandonment of the concept of nationality discrimination as an instrument for global economic governance, the paper argues that in terms of overall legitimacy, there are several reasons supporting the claim that a rationality-based regime should be favored to one based on non-discrimination.

Managed Mutual Recognition Regimes: Governance without Global Government

Mutual recognition regimes set the conditions governing the recognition of the validity of foreign laws, regulations, standards, and certification procedures among states in order to assure host country regulatory officials and citizens that the application of foreign rules within their borders is compatible with their own. They thus are always managed and differ from a pure free trade model by involving a (often highly) political process of assessment of mutual compatibility between national systems of governance. The paper addresses the relationship of mutual recognition with the principles of extraterritoriality, national treatment, and harmonization. It assesses the factors that explain the rise and operation of mutual recognition regimes and their constraints. It examines these regimes from the normative perspectives of administrative accountability, private rights, and democratic legitimacy, and in relation to concerns about power asymmetries. It concludes by showing how mutual recognition regimes provide a lens for assessing the overall global administrative law project.

Princípios da união internacional de telecomunicações (UIT) e do acordo sobre comércio de serviços (GATS) da OMC

Esse artigo trata especificamente de dois Tratados Internacionais dos quais o Brasil é signatário, a saber: o Tratado da União Internacional de Telecomunicações (UIT) (1992) e o Acordo Constitutivo da Organização Mundial do Comércio (OMC) (1994). Um dos anexos do Tratado da UIT é o Regulamento Internacional de Telecomunicações (RIT), que estabelece, em seu Art. 6.1.3., isenção tributária nas remessas ao Exterior entre operadoras de telecomunicações referentes a pagamentos efetuados por contraprestação de serviços de telecomunicações internacionais. Um dos acordos que fazem parte da OMC é o do GATS, que dispõe sobre a liberalização do comércio de serviços, e que tem no tratamento nacional um de seus princípios fundamentais. O Brasil tem se recusado a reconhecer a plena vigência no país do art. 6.1.3. do RIT. Por outro lado, adotou um modelo de legislação sobre serviços de satélites que fere o princípio do tratamento nacional do GATS. Sustenta-se nesse artigo que a natureza vinculativa tanto do art. 6.1.3. do RIT quanto do princípio do tratamento nacional do GATS impõe ao país a obrigação de adotar certas condutas e políticas compatíveis com os interesses da comunidade internacional. A relutância em segui-las coloca o Brasil na condição de país que não tem apreço pela segurança jurídica das relações internacionais nem pela boa-fé no cumprimento das obrigações internacionais.

TRIPs and trademarks: the case of tobacco

Proposed tobacco control measures such as mandating plain packaging of products and prohibiting the use of terms such as ‘light’ and ‘mild’ when associated with tobacco products raise the issue of to what degree WTO Members have regulatory freedom in relation to trademarks under the TRIPs Agreement. This paper uses these measures as a case study to examine rules relating to registration and use of trademarks. More particularly, the scope of Article 20 is addressed, as is the issue of whether TRIPs creates a positive right to use a trademark. This paper argues that no right of use is provided for by TRIPs and that Article 20, whilst not prohibiting the measures in question, is not based upon sound principle and is difficult to interpret. Finally, this paper argues that rules relating to use of trademarks require re-negotiation and that a minimum standard of protection for use of trademarks is not justified except where such a standard relates to principles of national treatment or most-favored-nation principles.

Diversité culturelle à l'OMC et l'UNESCO à l'exemple du cinéma

Diversité culturelle à l'OMC et l'UNESCO à l'exemple du cinéma

National Treatment in the NAFTA Trucking Case

The NAFTA Trucking decision is the first major case decided under NAFTA's Chapter Twelve (on services). Cross-border trucking is not just any service - it is perhaps the essential service in functionally establishing the North American market NAFTA seeks to create. The Trucking panel found itself in rather untested waters as it confronted NAFTA's National Treatment principle in the context of services. It succeeded, more or less well, in transporting notions established in GATT and NAFTA trade-in-goods jurisprudence to the relatively unexplored service regime. That said - it is not clear how well some of these principles transfer. The concept of National Treatment is well developed in the treatment of goods. Applying National Treatment principles to services, such as cross-border trucking, is problematic, at least on first impression. The NAFTA treaty language tests whether the treatment accorded to foreign service providers is no less favorable than the treatment accorded national service providers in like circumstances. This language is meant to be a functional analog to the well-worn GATT test used to analyze whether imported and domestic goods are being treated alike under national regulation. The express commitments made by the United States to phase-out the restrictions on access for Mexican trucking firms were difficult for the Trucking panel to ignore. The challenged U.S. measure (a categorical denial of access to all Mexican trucks) was so beyond the pale that the panel did not have to reach in finding the United States to be in noncompliance with its NAFTA obligations. But the panel used the occasion of the Trucking decision to provide some useful guidance as to the nature of NAFTA's service obligations. This essay makes three observations about the operation of the National Treatment principle as it is developed in the Trucking decision: 1. A NAFTA Party's National Treatment obligation with respect to services may be harder than is the case with respect to goods. Pacta sunt servanda applies with more force where the operation of the National Treatment principle is precisely negotiated with respect to a specific service sector. 2. In testing host country regulation of a foreign service provider for National Treatment, the design and efficacy of the regulatory scheme of the home country of the service provider is relevant. 3. A perception of protectionist intent will doom arguments seeking to justify departures from National Treatment. Nothing is new under the sun here.

Foreword by the Director-General of the WTO

Trade policy used to be a rather simple matter of defining conditions of access to markets at the border. Little more was needed than rules defining non-discriminatory tariff levels, circumscribing the use of quantitative trade restrictions, and protecting the conditions of market access through the principle of national treatment. But the very success of these simple rules in creating the conditions for successive bouts of market-opening negotiations bred the complex and multi-faceted institution that is the World Trade Organization of today. As tariffs tumbled, all manner of other policies became crucial for continuing market integration. The rules had to follow the reality. It is a brave person now who claims more than a passing familiarity with each and every aspect of the WTO Agreements.In this fascinating labyrinth of what passes for policy relating to trade, it is unconvincing to argue that there is ever enough research and analysis. There will always be more that needs to be explored and better understood. Every effort to illuminate, to clarify, and to explain the trading system must surely be welcome. But if we are to advance our understanding of what makes sense and what does not, and contribute effectively to international economic cooperation, the quality and integrity of analysis is vital. This has become more especially true in recent years as dozens of developing countries facing formidable development challenges seek progress through meaningful participation in the world trading system. One of the great strengths of the WTO is its commitment to universality. If we are to give meaning to this vision and foster confidence in the fairness of the system, we must ensure its proper design on solid conceptual foundations.I am proud to associate the WTO Secretariat with the birth of the World Trade Review. The journal is committed to promoting high-quality policy analysis and welcomes contributions from a wide range of disciplines and cross-section of contributors. This is not an in-house journal devoted to selling pre-conceived ideas. Its mission is to promote informed and honest debate and to deepen understanding. The journal's editorial independence is central to these objectives. I wish the Editor and the members of the Editorial Board of the World Trade Review well in this important endeavour.

From Patchwork to Network: Strategies for International Intellectual Property in Flux

Nation-states, forming a patchwork, have made intellectual property laws for their respective territories and coordinated these laws in the classic Berne-Paris treaty regime, most notably by applying the principle of national treatment. However, with the emergence of global networks, creations typically protected by intellectual property laws increasingly cross many borders at once, and the national laws applicable to online transactions and infringement tend to enter into more frequent and volatile conflicts. This article initially outlines short-term, strategic options with which private parties might respond to this paradigm shift and then asks how long-term, law-making methodologies should take account of such options in the light of public policy. In the short term, self-help measures, such as encryption, in tandem with software and contractual rules, can be used to supplement intellectual property laws both to protect contents online and to maximize profits from such contents. Also, choice-of-law approaches, as well as varying jurisdictional rules, can be manipulated in litigation between private parties with divergent interests, for example, between content-providers, service-providers, and end-users. It is here argued that, in the long term, recourse to the classic treaty regime coordinating the patchwork of national laws does not suffice to optimize the results of such strategies for private parties or for the public. Optimization guidelines are proposed: (1) avoid patchwork law-making; (2) organize private-public initiatives to elaborate network law; and (3) formulate such law compatibly with diverse cultures.

The Impact of the Wto Agreement on Trips (Trade-Related Aspects of Intellectual Property Rights) on Ec Law: A Challenge to Regionalism

This study first examines the underlying rationale for TRIPs, and its two fundamental principles, the National Treatment principle and the Most-Favored-Nation principle, and evaluate their impact on EC law. The latter in particular poses an imminent danger to regional agreements. The interface between patent law and competition law has been selected to elucidate this impact. It demonstrates the conflict between TRIPs and EC single market integration, regarded by the European Court of Justice as a major objective of EC law that has so far overshadowed the development of EC competition law. The study concludes that the "Chinese" wall, which the Court of Justice has been helping to build around the EC, should tumble.There is one way to delay this process, or even prevent it from taking place. If the provisions of TRIPs are denied direct effect, then individuals will not be able to realize the rights granted to them under this agreement. A middle-way approach, applying a rule of interpretation, and perhaps even a rule of presumption that would ensure compatibility of national and regional legislation with TRIPs, may allow for a cautious step-by-step assessment. However, it would offer no easier solutions to weighty issues, such as the maintenance of regional "exhaustion of rights".

Towards an Investment Agenda for APEC

The Asia‐Pacific Economic Cooperation (APEC) forum has only recently included investment liberalization on its agenda. A review of actions since the Bogor declaration of 1994 reveals that critical components of an investment liberalizing strategy are already being assembled within APEC. For example, an investment experts group has been meeting regularly and it has undertaken work on impediments to investment and on implementing the non‐binding investment liberalizing procedures endorsed by members at Bogor in 1994. Investment is also now a required component of each member's annual individual action plan. It would be useful to formalize this process and then move towards adoption of the rules‐based investment provisions of NAFTA, especially the national treatment principle. Then the process developing within APEC to liberalize investment as well as trade by 2020 would help to speed up the economic integration of APEC.

Is National Treatment Still Viable? U.S. Policy in Theory and Practice

National treatment, which precludes the use of rules that discriminate between foreign and domestic firms, seeks to ensure equality of competitive opportunity for foreign firms entering or operating in a host country. National treatment is a generally accepted principle for international trade in financial services. It is the basis for commitments by the twenty-four countries belonging to the Organization for Economic Cooperation and Development (OECD) and for the current negotiations on trade in services in the Uruguay Round of the General Agreement on Tariffs and Trade (GATT). This paper provides an analysis of national treatment and alternative principles in the context of the banking sector, with the U.S. experience as an example.The first section of the paper presents a conceptual analysis of national treatment and of principles that go beyond national treatment that have been used or proposed to govern domestic market access for foreign firms. The second section discusses the development and application of the U.S. policy of national treatment in the context of the conflicting demands created by the internationalization of banking and a host-country regulatory structure that differs significantly from that of other major industrial countries. The treatment of nonbanking activities and interstate activities of foreign banks that operate banking offices in the United States are used as examples of the U.S. approach. The final section presents the conclusions.