Non-discrimination Obligations Research Articles

중재조항의 물적 관할 제한과 관련된 포괄적 보호 조항 및 최혜국대우조항 적용에 관한 연구

Purpose: This study analyses the umbrella clause and the most favored nation clause by focusing on A11Y Ltd. v. Czech Republic issued under international commercial arbitration.
 Research design, data, and methodology: Typical case analysis deals with the issues surrounding the selection of applicable cases for international commercial arbitration.
 Results: Under the arbitration clause, which explicitly excludes disputes regarding the FET clause and the non-discrimination clause, it is not acceptable to invoke both clauses through an umbrella clause.
 Conclusions: Above all, from the facts of this case, it is thought that even if the jurisdiction is expanded, difficulties accompany the complete citation of a claim on the merits. Regarding a non-discrimination obligation, the Tribunal denies the distinction of administrative rules in the context of expropriation. On the other hand, the inappropriate behavior of the Labor Bureau is acknowledged, and there is room for violation of FET or the obligation to prohibit investment damage.

May Australian States Impose Sexual Orientation and Gender Identity Non-Discrimination Obligations on Religious Schools? A Rejoinder to Foster

Section 38 of the Sex Discrimination Act 1984 (Cth) provides exceptions to various non-discrimination obligations of the SDA so that those obligations do not burden religious educational institutions. Legal controversy exists over whether, in light of section 38, a State law that imposes sexual orientation and/or gender identity non-discrimination obligations on religious schools is constitutionally valid under section 109 of the Australian Constitution. In Volume 1 of the Australian Journal of Law and Religion, Associate Professor Neil Foster argued that such a State law would not be valid. This article, a rejoinder to Foster, considers the jurisprudence of the High Court on section 109, as well as other relevant case law. After considering the case law, it concludes that State laws that impose sexual orientation and/or gender identity non-discrimination obligations on religious schools can be consistent with section 38 of the SDA and thus not rendered invalid due to section 109 of the Australian Constitution.

FRAND licensing commitments – Back to first principles

The UK Supreme Court’s judgment in Unwired Planet v Huawei addressed several issues relating to promises to license SEPs on FRAND terms under the ETSI IPR Policy – an English court’s jurisdiction to set worldwide terms for a FRAND license; English courts as a convenient forum; the scope of the non-discrimination obligation; the negotiation process to be followed to be seen as a “willing” licensee or licensor; and the proportionality of a FRAND injunction. The UKSC prefaces its findings on the five issues in dispute with an overview of the goals of the ETSI’s IPR Policy and the realities and commercial practice of SEP licensing. This paper critically reviews that overview and the conclusions drawn from that, in the light of first principles derived from competition law (especially essential facility principles) that underpin the ETSI IPR Policy and should govern interpretation under contract law, and which the UKSC should have analysed. In this light, it discusses the issuance of injunctions, the definition of willing licensor and licensee (including licensing level), the need for an effective proportionality assessment as a fallback, damage awards or rate setting as an alternative to injunctions, the setting of worldwide rates by national courts, and the FR and ND components of FRAND.

Lines of Business Restrictions

Line of business restrictions (LOBRs) are antitrust remedies or regulatory restrictions that limit the activities that a firm can undertake. They include separation restrictions ranging from structural to behavioural separation (accounting, functional or legal). However, there are also alternative behavioural restrictions such as mandating access, non-discrimination obligations and mandatory standards on portability and interoperability. LOBRs are used to address concerns that competition is likely to be prevented, restricted or distorted in a number of different ways. These include concerns that dominance is leveraged to exclude rivals in another downstream market, for example through discriminatory selfpreferencing (equivalent to margin squeeze) or refusal-to-deal. The risk of such exclusionary abuses also arises from mergers that might make such conduct likely. Each type of LOBR has enjoyed success in certain circumstances; the challenge is therefore identifying the right LOBR for the specific problem. For example, if the theory of harm is that access is being denied to an essential facility, and a loss of competition as a result of such an explicit refusal-to-deal is established, then the solution will need to focus on allowing access, and applying a duty-to-deal. Hence, the appropriate LOBR might include mandatory access on FRAND terms, or structural separation to achieve the same access. In contrast, if the regulatory or antitrust concern is not that the firm refuses-to-deal, but that it deals on terms that foreclose through raising rival costs or predation (via some form of margin squeeze, or equivalently a merger leading to margin squeeze), then the solution (were one required) would not focus on mandating access. Instead, the response might be a non-discrimination obligation (without necessarily imposing a duty-to-deal on FRAND terms) or to mandate standards for portability and interoperability. Notably, in the case of digital platforms, it would appear that refusal-to-deal is not driving the concerns (thus far), and so imposing a duty-to-deal seems unlikely to be the right answer. Instead, the concerns appear to relate to foreclosure through self-preferencing that raises rivals’ costs, meaning that non-discrimination obligations are the more likely LOBR. Moreover, digital platforms are not natural monopolies in which competition cannot take place. Therefore, the approach should not be to write off the possibility of competition in platform markets and focus solely on preserving the possibility of competition downstream (or upstream) markets (as in regulated infrastructure monopolies). Instead, behavioural LOBRs including standards for portability and interoperability could facilitate competition within these markets (and thereby begin to resolve the foreclosure risk in downstream markets). However, it may nevertheless be sensible to reinforce these with further LOBRs, for example non-discrimination obligations, in these downstream (upstream) markets to preserve competition while competition in these ‘core’ markets is strengthened.

Statistical issues arising in the Office of Federal Contract Compliance’s recent notice on nondiscrimination obligations’ of contractor’s and the concerns raised in the comments submitted by the U.S. Chamber of Commerce

Abstract A proposed rule announced by the Office of Federal Contract Compliance describing the way statistical tests will be used in compliance reviews led to the Chamber of Commerce filing a formal Comment. The comment raises several statistical issues, including the proper analysis of stratified data and the effect of large samples on tests of significance. The Chamber correctly pointed out that simple pooling of the data into one large sample can lead to misleading conclusions, so an appropriate analysis, combining the results of statistical analyses of the individual strata into an overall estimate and statistical test is described. Both the proposal and Comment state that practical significance should be considered but do not provide a clear definition of the term, although various definitions are referred to. Two alternative approaches to evaluating the practical significance are described. One assesses the financial impact of the disparity on a typical wage earner, while the second considers the number of employees affected by the disparity and estimates the effect of the disparity on their earnings during their expected time of employment.

Towards a vertically separated broadband infrastructure: The potential role of voluntary separation

Public policymakers face the challenge of maintaining incentives for investments in fiber-to-the-premises (FTTP) infrastructure while simultaneously enabling effective competition. In that regard, the ability of vertically integrated operators to discriminate against downstream rivals is regarded as a major regulatory problem, especially as policing nondiscrimination obligations is notoriously difficult for vertically integrated operators. The European regulatory framework mandates functional separation to eliminate discrimination incentives. However, this measure comes with significant drawbacks and caveats and resembles a strong market and ownership intervention. The present article discusses how voluntary vertical separation can achieve the positive effect of a vertically separated industry structure without the need for strong market interventions. We use a discounted cash flow model to compare the financial attractiveness of wholesale-only and integrated business models for a greenfield FTTP rollout. We further discuss and test how public policymakers could positively affect the profitability of a wholesale-only business model. Based on our findings, we recommend public-policymakers and national regulation authorities to proactively define separation scenarios and respective ex ante regulation reductions precisely, to make adjustments to broadband state aid programs that favor wholesale-only providers, and to critically reflect the hampering effect volume and time discount wholesale tariff structures of incumbents have on the emergence of wholesale-only networks.

Managing Misconceptions about EU Citizens’ Access to Domestic Public Healthcare: An EU-Level Response?

This article explores the interaction between EU movement of persons and the access to and financing of public healthcare in the UK, Ireland, Belgium, and the Netherlands. The article will show that particularly in a time of relative austerity and a seeming lack of cross-border solidarity, the non-discrimination obligations in the EU Treaties may encourage the Member States to cut back on tax-funded healthcare so as to not have to extend such care to nonnationals. It suggests that if the Member States cannot effectively rebut the persistent public concerns of ‘EU welfare tourism’ with statistics, it may be preferable for them to seek to address those fears at the EU level (by a re-coordination of responsibility for health care coverage) than to respond to them through domestic law (by increasing individual responsibility for health care costs). Free Movement of Persons, Public Healthcare Organisation, Welfare Tourism, Social Security Coordination

Non-discrimination on the Ground of Religion: A Fundamental Element of the EU Constitutional Legal Order?

The general obligation of non-discrimination enjoys a special place within the sources of law of the EU constitutional legal order, up to the point that the Court of Justice has ensured its enforcement also beyond the scope of application of ordinary EU legal instruments. The Court of Justice has, in fact, granted the application of the obligation not to discriminate against the protected categories (as transposed in the Charter of Fundamental Rights – with the caveat of its limits – as well as in the Treaties) also in cases in which the applicable legal instrument – be that the Treaty or any other piece of EU primary legislation – was not applicable. This happened with particular reference when the Court of Justice decided to apply the obligation of non-discrimination in cases involving two private parties, applying what is usually defined as the horizontal direct effect of EU legal instruments. This is not only confirmed by the case law of the Court of Justice on non-discrimination between women and men (the Defrenne case law), on the ground of nationality (inter alia Zambrano), on the ground of age (Mangold, Kucukdeveci and ultimately Ajos-Dansk Industri) but, eventually , from the case law of the Court of Justice on religious discrimination. This happened in a recent decision of the Court of Justice of the European Union, Egenberger (C‑414/16), where a job applicant – Mrs Vera Egenberger – for a position offered by an auxiliary of the Protestant Church, in Germany, appealed the decision of the employer not to hire her – ironically enough – on a legal consultancy project on the application of the United Nations International Convention on the Elimination of All Forms of Racial Discrimination. In front of the EU Court of Justice, Mrs Egenberger invoked Directive 2000/78/EC and the Church invoked its right to religious autonomy, embedded in the exception contained in Art. 4(2) of Directive 2000/78/EC, that allows religious organizations, albeit in certain circumstances, to be exempted from the application of the directive. In cases like the one at hand, if the content of the Directive has not been transposed in national legislation, in principle, the EU institutions cannot take action or require the application of EU law to an individual (in this case the Church – employer or the individual – employee) who would be, otherwise, paying the price for the negligence of their national administrations. Since however failing to apply the Directive would have entailed a limitation of the obligation of non-discrimination, the Court ruled that the matter was falling under the scope of application of Directive 2000/78/EC but was not complying with the proportionality requirement to be considered as an exception to its application pursuant to its Art. 4(2). How this has been done, and in particular the use made of the principle of non-discrimination on the ground of religion, is a matter that will be further explained in the paper and in the intervention. For now it is sufficient to pose ourselves a fundamental question: the behavior of the Court, and the enforcement – whatever it takes – of the principle of non-discrimination on the ground of religion, is a restatement of the importance of non-discrimination in the national legal orders, or it is rather the affirmation of the specific and fundamental place that non-discrimination on the ground of religion occupies in the EU constitutional legal order? How this can be reconciled with religious freedom? The paper will try to address these questions.

Taxation and the Cross-Border Trade in Services: Rethinking Non-Discrimination Obligations

Taxation and the Cross-Border Trade in Services: Rethinking Non-Discrimination Obligations

Is there a need for platform neutrality regulation in the EU?

Motivated by the policy discussion in the EU whether to impose non-discrimination obligations for dominant online platforms, we analyse whether such regulation is warranted from an economic point of view. Our contribution is threefold. First, across several platform contexts, we identify (i) (paid) prominence of some third parties over others and (ii) the favouring of a platform's integrated services over independent entities as common discriminatory conducts of online platforms. Second, within this scope, we review the economic literature and find that discrimination in the form of paid prominence may often be in the interest of consumers. However, smaller or low-quality content providers are likely to be worse off, which gives rise to concerns regarding dynamic efficiency and long-term variety in those markets. Additional problems may arise if platform operators are vertically integrated with content providers. Third, based on these theoretical insights, we recommend that EU policy makers should not adopt a neutrality regulation for platforms prematurely. Instead, we recommend to impose new proportionate transparency rules for dominant platforms in order to facilitate the identification of actual misconduct and legal enforcement.

The Citizenship (Amendment) Bill, 2016: international law on religion-based discrimination and naturalisation law

ABSTRACTThe current Indian Government has been under the scanner for its non-secular agendas that often reeks of religion-based bias. The apprehensions of critics and political opposition have found stronger basis in the proposed amendments to the Citizenship Act 1955, introduced in Parliament in July 2016. Purportedly for the protection of certain minority communities, the Act makes relaxations for naturalisation of undocumented migrants belonging to the identified groups. Seemingly laudable, a closer look at the provisions may reflect a partisan selection of beneficiaries on religious grounds. At a time when the Trump Administration is causing stirs throughout the international community with its non-secular agendas, and with several political and military disturbances that centre around ethnic and religious identity in different parts of the globe, non-discrimination obligations under international law gain prime importance. This legislative note attempts to analyse the religion-based discrimination that the Citizenship (Amendment) Bill, 2016, facilitates, in light of India’s obligations under international law.

Taxation and the Cross-Border Trade in Services: Rethinking Non-Discrimination Obligations

This Article examines the conflict between tax and trade law principles in the tax treatment of a non-resident service provider. It explores that conflict through non-discrimination obligations found in the General Agreement on Trade in Services (GATS), regional trade agreements, bilateral trade agreements, and tax treaties. The interplay between these agreements has the potential to frustrate trade law objectives because States may impose discriminatory tax measures on non-resident service providers. Tax treaties can play an important role in providing a minimum non-discrimination obligation for tax measures impacting the cross-border trade in services. This Article proposes a new tax treaty non-discrimination obligation grounded in trade law principles.

Taxation and the Cross-Border Trade in Services: Rethinking Non-Discrimination Obligations

This Article examines the conflict between tax and trade law principles in the tax treatment of a non-resident service provider. It explores that conflict through non-discrimination obligations found in the General Agreement on Trade in Services (GATS), regional trade agreements, bilateral trade agreements, and tax treaties. The interplay between these agreements has the potential to frustrate trade law objectives because States may impose discriminatory tax measures on non-resident service providers. Tax treaties can play an important role in providing a minimum non-discrimination obligation for tax measures impacting the cross-border trade in services. This Article proposes a new tax treaty non-discrimination obligation grounded in trade law principles.

Remarks by Federico Ortino

When it comes to trade law, it is true that there appear to be certain signs that we are moving back to non-discrimination and away from deeper forms of integration. However, this is possibly (and hopefully) only a limited and temporary shift. The strongest evidence of such a shift regards the apparent interpretation by the WTO Appellate Body (AB) of the key provisions in the TBT Agreement in such a way as to give prevalence to the national treatment standard in Article 2.1 over the necessity requirements in Article 2.2. For example, in US – Tuna II (Mexico) the AB found the U.S. dolphin-safe regulations under review inconsistent with Article 2.1, while also reversing the panel finding that the U.S. dolphin-safe regulations were inconsistent with Article 2.2. Such a result is surprising if one considers the general agreement among commentators that the disciplines embodied in the TBT Agreement (as well as in the SPS Agreement) went beyond the non-discrimination obligation of the GATT.

The EU Regulatory Framework for Access to the Postal Network

The Postal Directive does not oblige Member States to mandate access to the postal network of the universal service provider or to regulate the conditions under which such access is provided. It is left to the discretion of the Member States whether to introduce a mandatory access regime or not. If Member States decide to introduce such a regime, they must take into account that, at least where bulk mail is still part of the universal service, the tariff conditions for so-called ‘downstream’ access to the postal networks must respect the non-discrimination obligation of Article 12, 5th indent of the Postal Directive. This implies that no distinction can be made between, on the one hand, postal operators competing end-to-end with the universal service providers, and, on the other hand, bulk mailers or intermediaries working on their behalf, who inject mail under the same operational conditions. Also from a policy perspective, it does not seem desirable to allow such a difference in treatment (ie, ‘positive discrimination’ in favour of end-to-end competitors) as it is likely to be counter-productive for the development of competition in the postal sector.

Internet Platforms and Non-Discrimination

This report evaluates whether non-discrimination obligations for online platforms are warranted from an economic and legal point of view. Thereby, the focus of this report is on online platforms that employ a multi-sided business model. Based on several case studies encompassing operating systems, app stores, search engines, e-commerce platforms and ad-blocking, the report identifies (i) (paid) prominence of some third parties over others and (ii) the favouring of a platform’s integrated services over independent entities as possible concerns across the internet with respect to discrimination in online platforms. In the extreme, such discrimination may even take the form of blocking of specific third-party products, content or services. Within this scope, both the current legal framework that applies to online platforms at the EU level, as well as the insights of the economic literature regarding the welfare effects of discrimination with respect to prominence are reviewed in this report. From an economic perspective, the literature finds that discrimination in the form of paid prominence may often be in the interest of consumers. In the case where content providers’ quality is pivotal, static efficiency is maximized if the platform can offer content providers paid prominence; in the other case, where content providers differ mainly by price, welfare results may reverse. In both of these cases smaller or low-quality content providers are worse off if platforms can offer paid prominence. This gives rise to concerns regarding dynamic efficiency and long-term variety in those markets. Additional problems may arise if platform operators are vertically integrated with content providers. In summary, from a static efficiency perspective, the economic findings do not support a general theory of harm with respect to the considered discriminatory practices that would warrant a wide ex-ante application of a non-discrimination rule. From a dynamic perspective, a non-discrimination rule may be more appropriate, but currently there is a lack of economic research to thoroughly support this claim. Although the report finds that there is no sufficient basis for a general ex-ante non-discrimination obligation for platforms, there are economically valid concerns with respect to SMEs and long-term effects that would warrant additional safeguards for the enforcement of the general rules against unjustified discrimination. Thus, the policy framework should aim at making those general rules, such as competition law or consumer protection, more effective and the report makes several suggestions to this end.

Fry v. Napoleon Community Schools: Finding a Middle Ground

The Supreme Court clarified and liberalized students with disabilities access to courts in Fry v. Napoleon Community Schools. It held that parties bringing claims under Title II of the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act (“Section 504”) do not need to exhaust the administrative procedures of the Individuals with Disabilities Act (“IDEA”) before filing suit unless the gravamen, or substance, of the suit seeks redress for the denial of a free appropriate public education. While this is a significant victory for students with disabilities, the Court did not liberalize access to courts or school liability as much as it could have. Instead, it found a middle ground for both court access and the obligations schools owe students with disabilities. The decision is significant on two fronts. First, it opens the courtroom door to students asserting ADA and Section 504 claims by excusing them from having to wind their way through the often time-consuming and onerous administrative due process procedures of the IDEA. The prevailing view among the circuits prior to Fry made it very difficult, if not near impossible, for many 504 and ADA claims to proceed directly to court if they were asserted by a child eligible under the IDEA. This is a significant victory for students and parents that need immediate and efficient relief from disability discrimination. But the Court’s measured approach – requiring a determination of the gravamen of plaintiff’s complaint rather than just accepting the relief sought by the plaintiff at face value – does not throw the courtroom doors wide open. Part I of this essay explains the Fry decision, the new exhaustion requirement, the critical issues it left undecided, and its impact going forward. The second and equally important impact of the Fry decision is the heightened recognition of the Court of the differences between the protections afforded by the ADA and Section 504 on the one hand, and the IDEA on the other. The interplay of these three independent but overlapping statutes has confounded courts, including the Supreme Court, for years. It is well understood that the IDEA contains affirmative obligations for states to provide a limited class of eligible students with disabilities a “free appropriate public education.” It is equally understood that the ADA and Section 504 protect a broader class of students with disabilities against discrimination, by requiring schools to provide such students with reasonable accommodations. What has been unclear is whether schools automatically meet their non-discrimination obligations to a student under Section 504 and the ADA when they provide a FAPE to that student under the IDEA. The Supreme Court definitively answered this question in the negative, but did not go as far as it could have to expand liability for schools. It recognized that Section 504 and the ADA impose independent accommodation obligations beyond the provision of FAPE, but also implied that the overlapping FAPE requirements of the statutes are identical. Part II of this essay explains how the Fry decision advances the understanding of how these statutes overlap, and how they don’t, and firmly establishes that compliance with the affirmative obligations of the IDEA does not necessarily mean compliance with the non-discrimination provisions of Section 504 and the ADA.

The Nondiscrimination Obligation of Immigration and Nationality Act Section 202(A)(1)(A)

The nondiscrimination obligation of INA Sec 202(a)(1)(A) entered the law in 1965 as part of a larger Congressional repudiation of the executive branch's claim to flexibility and discretion in the issuance of immigrant visas. The administration had specifically claimed the discretion to direct immigrant visas to Western European countries potentially disadvantaged by the abolition of national origin quotas. Congress eliminated this discretion and, in the same substitute bill, reserved the power to create categories of immigrant admission to itself. Congress reinforced that power by directing the executive branch to administer visa categories without favoring countries or races. The nondiscrimination obligation thus rules out some of the more extravagant recent claims for executive authority unilaterally to alter immigration law.

The Trade System and Climate Action: Ways Forward Under the Paris Agreement

The relationship between trade policy and climate policy needs to improve in the future, in particular with a view towards implementing the Paris Agreement. With the aim of making trade policy supportive of climate action, this working paper discusses the relationship between the regimes established by the World Trade Organization (WTO) and the United Nations Framework Convention on Climate Change (UNFCCC), the provisions and pending disputes, the role of regional trade agreements as well as upcoming issues emerging from the Paris Agreement. It highlights several options for addressing the relationship between the two regimes from a legal, institutional and a policy perspective. The suggested options relate to those fields where national climate policy action has been taken during the last years and which are part of the intended nationally determined contributions (INDCs) submitted in the run-up to the Paris Agreement.Already today, many regional trade agreements include climate and environmental provisions, and could thus help prevent a regulatory race to the bottom. Moreover, the increasing number of WTO disputes over national renewable energy policy regulations points to the case-by-case nature of WTO rule application on the one hand, and to a more systemic conflict of national approaches with the WTO obligation of non-discrimination on the other.

Eurobonds: Legal Design Features

In light of proposals for Eurobonds, this article explores central legal features of the Eurobond proposals. Section I focuses on the development of the law governing sovereign bonds and assesses the potential, but limited role of international law to Eurobonds. Section II considers the equal treatment of bondholders, looking at the two potential sources of non-discrimination obligations for sovereign bonds and their relevance to Eurobonds. Section III turns to two crucial design features of Eurobonds - which existing proposals mostly address only in passing: (i) which legal entity issues Eurobonds; and (ii) what form of debt mutualization Eurobonds involve.