Nondiscrimination Requirements Research Articles

A Contemporary Contextualization of Security Under Article XXI of the GATT

States’ perceived sovereign interests are often not aligned with international legal standards, especially in relation to national security. The Article XXI security exception qualifies the collective interests of the international community which the non-discrimination requirements of the General Agreement on Tariffs and Trade (GATT) regime aspires for. While its justiciability and self-judging nature have long been discussed and debated upon, the provision must be understood in light of the ever-evolving conceptions of security itself, including challenges posed by climate change, public health emergencies and cyber warfare. Despite being noticed at the drafting stage, Article XXI does not contain a mechanism akin to the chapeau of Article XX against which the need for states to act against such non-conventional threats may be balanced with free trade interests. In view of the underlying subjectivity arising from both, judicial discretion and states’ conceptions, this article so contextualizes the security exception, including by tracing its historical underpinnings. It considers the application of the good faith requirement and significantly, examines whether security interests can objectively be determined. National security, WTO, treaty interpretation, Article XXI, non-discrimination, trade law, GATT

When rights collide: Examining conflicts between gender identity, sexual orientation, & religious discrimination protections

In 2020 the U.S. Supreme Court extended federal employment discrimination protections to individuals based on their gender identity or sexual orientation. While this decision represents a victory for LGBTQIA+ employees, it did not speak to whether religious freedom laws would provide a suitable defense for violating this law. After this decision, we are left with an HR puzzle. When employment discrimination protections collide, what set of rights, those based on our religious beliefs or those based on our gender identity or sexual orientation, win out? Existing laws and Court cases suggest that individuals and corporations may be able to avoid the non-discrimination requirement by claiming a religious objection to an employee’s gender identity or sexual orientation, but this issue is far from settled. Accordingly, this paper provides legal analysis of the conflict and presents advice regarding how to foster an inclusive workplace and ensure that the rights of all are safeguarded.

How does import market power matter for trade agreements?

We evaluate two potential causes of deviation from efficiency in WTO negotiations: (i) a free-riding problem that may be caused by the WTO's nondiscrimination requirement, and (ii) asymmetric information about government preferences. Theories based on the above two causes generate starkly different predictions about the pattern of negotiated tariffs. We find that the WTO agreement provides more tariff flexibility in products with lower import market power. This finding is consistent with the implication of a negotiation model under asymmetric information, which predicts a tradeoff between flexibility and discipline in tariff obligations. Finally, we use the model together with data on negotiated and applied tariffs to calibrate the political weight of each import-competing industry for all WTO member countries.

The advent of 5G and the non-discrimination principle

5G promises to be a game changer for the extended connectivity-based value chain, encompassing a much broader set of digitalized industries than previous solutions. By reshaping competition among market players and among technologies, it changes the trade-offs underlying the application of the non-discrimination principle. In this paper, we provide a unified view of the implications of these technological developments for four instantiations of this principle that span the entire digital value chain: non-discrimination in FRAND licensing of standard-essential patents (SEPs), vertical separation remedies, network neutrality and technological neutrality. We conclude that overly rigid and non-technology neutral interpretations of the non-discrimination requirement would be at odds with technological evolution and would be incompatible with the objective to maximize the overall value of digital networks.

Essential Notions Concerning the Integration of Refugees

The latest wave of refugees, which peaked in 2015, raises the question of what we mean by integration, not only in terms of the rules adopted in the EU, but also in terms of the social inclusion of individual refugees and their families. This is because the concepts in the literature, in EU documents on asylum, and in individual sectoral policies (e.g. social, employment, housing, health and public education) are not necessarily harmonized. Therefore, the aim of the study is not only to review integration outcomes, but also to distinguish concepts related to migration, asylum, and refugee discourse, such as exclusion, disintegration, acculturation, and assimilation. Only clarification will bring us closer to selecting the most important social policy and asylum measures. This clarification is also urgent because a coherent integration policy must comply with both cultural diversity and non-discrimination requirements in the EU.

Potential Investor Claims and Possible State Defences During the Covid-19 Emergency

Since it was announced as a public health emergency of international concern in 2019, Covid-19 has caused enormous loss of property and life. The country's emergency policies in responding to the Covid outbreak are numerous, such as closing public transportation and prohibiting the export of medical devices. These policies have potentially harmed the interests of investors. This study has three purposes: investors' potential claims to challenge state measures addressed to Covid-19, the legal defences of states, and the possibility of an international investment dispute. This study shows that investors' potential claims may be delivered based on violations of the principles of fair and equal treatment, full protection and security, and national treatment and the most favoured nations. While a state can defend itself based on the principles of force majeure and state necessity, states can also defence through Non preclude measures or right to regulate clause in international investment agreements. In addition, it would also be better to build international solidarity and cooperation to mitigate and defeat the Covid-19 pandemic than sue the government before ISDS. States need collective action to avoid a surge of investor-state Arbitration. Governments’ policy to combat Covid-19 is to be considered as acting in necessity and therefore cannot be found in breach of their investment treaty obligations as long as that policy meet the necessity, proportionate, and non-discrimination requirements.

Maximizing the differentiation principle in regional IP treaties to advance food security: Limitations in West Africa's regional IP and trade regime

AbstractIn this article, I examine whether the contemporary regional intellectual property (IP) agreements negotiated by West African countries are more suitable than multilateral agreements to advance food security in the region, based on the provisions they make for applying the differentiation principle. In this paper, the term “West Africa” is used to designate the 15 countries that are members of the Economic Community of West African States (ECOWAS), the major regional organization in the area (The founding members of ECOWAS were: Benin, Côte d'Ivoire, Gambia, Ghana, Guinea, Guinea‐Bissau, Liberia, Mali, Mauritania [left 2002], Niger, Nigeria, Senegal, Sierra Leone, Togo, and Burkina Faso [which joined as Upper Volta]. Cape Verde joined in 1977). By reviewing relevant literature and theories, I propose that the human right to development as a differentiating paradigm may be applied in IP regulation, without compromising the requirement of nondiscrimination in IP regimes. I argue that human rights linked to the food security should be differentiated from the proprietary rights granted in IP. After critical doctrinal analysis of West Africa's regional agreements related to IP rights and food security, I conclude that rather than maximising the adoption of the differentiation principle to advance the regions food security, these treaties are surprisingly less flexible than multilateral agreements, creating further challenges for food security in the region. Consequently, I propose an alternative regional framework for differentiation, that allows for differentiation between IP and human rights norms based on the instrumentalist approach to law, as being more suitable for advancing development and food security in West Africa.

Quantitative Analysis of Multiparty Tariff Negotiations

We develop a model of international tariff negotiations to study the design of the institutional rules of the GATT/WTO. A key principle of the GATT/WTO is its most‐favored‐nation (MFN) requirement of nondiscrimination, a principle that has long been criticized for inviting free‐riding behavior. We embed a multisector model of international trade into a model of interconnected bilateral negotiations over tariffs and assess the value of the MFN principle. Using 1990 trade flows and tariff outcomes from the Uruguay Round of GATT/WTO negotiations, we estimate the model and use it to simulate what would happen if the MFN requirement were abandoned and countries negotiated over discriminatory tariffs. We find that if tariff bargaining in the Uruguay Round had proceeded without the MFN requirement, it would have wiped out the world real income gains that MFN tariff bargaining in the Uruguay Round produced and would have instead led to a small reduction in world real income relative to the 1990 status quo.

The Executive Compensation Threat to Retirement

In recent years a new phenomenon has appeared on the retirement savings landscape: the expansion into middle management ranks of a traditional tool of executive compensation, the so-called “top hat” pension plan. Top hat plans are unfunded deferred compensation programs for a “select group of management or highly compensated employees.” Properly structured, top hat plans amass retirement resources that are taxed to employee-participants only when distributed. From the participant’s viewpoint, that delayed inclusion appears comparable to the tax deferral accorded qualified retirement plan savings, yet top hat plans are exempt from all of the Code’s qualification conditions. They are likewise excused from virtually all of ERISA’s pension plan participant protections, including vesting, funding, and fiduciary responsibilities. This regulatory immunity licenses three interconnected pathologies that undermine core retirement policy objectives. The inapplicability of ERISA’s worker protections, combined with preemption of state law, relegates top hat plan participants to a uniquely precarious position: their retirement savings are more exposed to depredation and vulnerable to loss than if ERISA had never been enacted. The inapplicability of the Code’s qualified plan nondiscrimination requirements allows employers to offer additional retirement savings to highly-paid managerial, technical, and professional employees without having to pay comparable benefits to rank-and-file workers. And the dramatic disparity, post-2017, between income tax rates applicable to corporations and high-income individuals incentivizes that favoritism with a substantial tax subsidy that’s unmeasured and generally overlooked. This article explores the unresolved ambiguity that has enabled top hat plan metastasis into upper-middle compensation ranges. It documents the sources of the pathologies associated with the expansion of top hat pensions and traces their consequences. And it surveys the leading responses to these developments, some of which offer only partial solutions, while others could be accomplished only by legislation.

Just how much is enough? EU regulation of capacity and reliability margins on electricity interconnectors

The European Union seeks to establish an Energy Union comprising an internal electricity market. The establishment of an integrated market at EU level requires both investment in necessary cross-border interconnectors and the optimal utilisation of existing interconnectors, where the latter utilisation of existing cross-border EU infrastructure currently appears to be surprisingly low. The overall objective of this article is to analyse how the calculation of capacity and reliability margins on interconnectors is regulated at EU level in order to achieve the establishment of an integrated Energy Union. On the basis of the fundamental non-discrimination requirements and prohibitions against abuse of a dominant position in EU law, we analyse the specific EU energy secondary legislation governing reliability management in transmission systems, including the detailed provisions in relevant network codes. We conclude that the comprehensive and complex secondary legislation still leaves considerable room for interpretation and discretion. We therefore question whether efficient enforcement of fundamental principles such as non-discrimination requirements will remain a more pressing need than developing an even more detailed regulatory framework in the continuous efforts to build an integrated Energy Union.

How Do Terms-of-Trade Effects Matter for Trade Agreements?

Do negotiated tariffs under the WTO deviate significantly from the first-best agreement? If so, why? To answer these questions, we consider two potential causes of deviation from the first-best in WTO negotiations: (i) a free-riding problem that may be caused by the WTO's nondiscrimination requirement, and (ii) asymmetric information about government preferences. Theories based on the above two causes generate starkly different predictions about the relationship between import market power and negotiated tariffs. Using WTO tariff data, we find that the pattern of negotiated tariffs is consistent with the implication of a negotiation model under asymmetric information. The free-riding problem appears to have a weak effect.

Contribuições da Corte Interamericana de Direitos Humanos para a efetivação da igualdade no Sul

O presente trabalho busca, a partir da aplicação do método dedutivo, da pesquisa jurisprudencial e bibliográfica, compreender em que medida a Corte Interamericana tem, ao consolidar a exigência da igualdade e não discriminação, contribuído à alteração da concepção gerada pela modernidade de igualdade, ao admitir que certos grupos e indivíduos encontram-se em situação tal de vulnerabilidade que exige que lhes sejam brindadas medidas positivas de inclusão e que sejam determinadas medidas negativas que visem proporcioná-la. Partiu-se do pressuposto de que, com o advento da colonialidade, valores liberais-individuais estenderam-se às formas de ser e pensar e às regulamentações jurídicas do Sul, e que, consequentemente, influenciaram o conceito de direitos humanos. Todavia, observou-se que na América, a Corte Interamericana de Direitos Humanos surge como mecanismo, quiçá, último para o resguardo, salvaguarda e efetividade dos direitos à igualdade e a não discriminação, contribuindo, no plano semântico para que se repense as fundações coloniais vinculadas à igualdade, porém, encontra limites na adesão pelos Estados, cujos pilares ainda mantém vestígios e fundações coloniais.

Think Global, Act Unilateral? WTO Limitations on Trade Measures to Enforce Ocean Conservation

The traditional territory-based structure of international law makes protecting global common goods a major challenge. This is particularly true with respect to the ocean, an environment where overlapping areas under the jurisdiction of different states coexist with very mobile resources and a medium in which pollution can spread quickly. This paper examines recent developments that allow a greater role in enforcing fisheries conservation measures for consumer states and port states, affecting the law applicable de facto to fishermen and fishing vessels regardless of the flag they fly and the area where the fishing occurs, and considers the WTO-legality of conservation measures adopted by two major fish importers, the EU and the US. Following the sea change brought by the Appellate Body report in US – Shrimp, WTO law permits consumer states to impose requirements with respect to environmental conservation beyond their borders. The jurisprudence that authorizes the use of product specifications applicable abroad, subject essentially to non-discrimination requirements, would seem to permit port state measures that deny certain vessels freedom of transit. On the other hand, the WTO-consistency of country-wide sanctions for Members that fail to adopt and enforce conservation measures may depend on these measures finding support in multilateral instruments and decisions.

Fair and Unfair Discrimination in Royalties for Standard-Essential Patents Encumbered by a FRAND or RAND Commitment

Legal disputes between SEP holders and implementers regarding FRAND or RAND royalties for SEPs have increasingly focused on the meaning of the nondiscrimination requirement contained in a FRAND or RAND commitment. However, as of August 2017, there is no agreement on the precise duties arising from such a requirement. The legal and economic literature has proposed divergent, and mainly normative, interpretations of the nondiscrimination requirement. Some commentators say that the nondiscrimination requirement prohibits the SEP holder from excluding individual implementers from using its SEPs, but that the requirement does not limit the terms and conditions that the SEP holder may offer to different licensees. Others say that the requirement imposes on the SEP holder a duty to offer similar terms to similarly situated implementers—although, even then, there is no agreement on how to implement the “similarly situated” construct in practice. The most misguided and unhelpful interpretation in that literature comes from economic scholars who contend that the nondiscrimination requirement imposes on the SEP holder the duty to create and maintain a “level playing field” among the SEP holder’s licensees. The majority of these proposed interpretations rest on normative expressions of what the nondiscrimination requirement should be, as opposed to positive principles of what that requirement is. Thus, they are limited in their ability to guide a court’s interpretation of the nondiscrimination requirement in the FRAND or RAND commitment at issue in a given dispute. If American law controls the interpretation of the obligations arising from an SEP holder’s FRAND or RAND commitment, there exists a rich positive jurisprudence on nondiscrimination that provides common principles that can aid a court’s interpretation of an SSO’s nondiscrimination requirement. Those principles, which are consistently applied across various fields of law, suggest that evidence that the SEP holder has treated similarly situated implementers differently is necessary but insufficient to prove that the SEP holder has violated the nondiscrimination requirement of a FRAND or RAND commitment. The court must also examine whether the SEP holder had a valid justification for the differential treatment of similarly situated implementers. Economic analysis can help a court to determine whether (1) the claimant is situated similarly to other implementers, (2) the SEP holder has treated the claimant differently, and (3) a valid justification exists for any differential treatment. A finding of impermissible discrimination is supportable only when the SEP holder lacks a legitimate justification for the disparate treatment of similarly situated implementers.

The ACA's Provision on Nondiscrimination Takes Shape.

The Department of Health and Human Services has issued far-reaching regulations to implement the nondiscrimination requirement of the Affordable Care Act. Now commonly called "Section 1557," this ACA provision prohibits discrimination by "any health program or activity, any part of which is receiving Federal financial assistance," on grounds prohibited under previously enacted federal antidiscrimination statutes. The DHHS Office of Civil Rights enforces Section 1557. These new regulations and accompanying commentary give warning of the standards the agency will use in its enforcement efforts. Courts will also give some deference to the DHHS regulations in interpreting the statute in lawsuits by individuals claiming damages against covered health care providers for illegal discrimination under Section 1557. Three central issues are the nature of the rights created in Section 1557 and their relation to the listed federal antidiscrimination statutes, the sorts of health care programs and activities that are covered by Section 1557, and the definition of the personal characteristics, including sexual orientation and gender identity, against which discrimination is prohibited.

China–Rare Earths: Export Restrictions and the Limits of Textual Interpretation

AbstractThe China–Rare Earths decision of the Appellate Body addressed two main issues: (i) whether China's obligations not to impose export duties under its accession protocol are subject to exceptions under Article XX of GATT, and (ii) the scope of the exception for China's export quota measures relating to conservation under Article XX(g) of GATT. In accord with its China–Raw Materials decision, the Appellate Body found that there is no textual basis for the application of the Article XX exception to China's export duty obligations. This interpretation exalted a narrow contextual approach over an approach to interpretation that would focus on broader context, object, and purpose. The Appellate Body also approved the Panel's overall approach to determining the availability of the Article XX(g) exception. This approach focused on the design and structure of China's quota measure, but left unresolved important issues, including the extent to which non-conservation purposes may prevent use of the exception and the role of empirical evidence of effects in these determinations. While the Appellate Body found that there is no ‘even-handedness’ requirement in Article XX(g) itself, we argue that the chapeau's requirement of non-discrimination is an appropriate additional criterion for determining whether a policy with a target of reducing extraction of a natural resource satisfies the requirements of Article XX.

Screening and Adverse Selection in Frictional Markets

We develop a tractable framework for analyzing adverse selection economies with imperfect competition. In our environment, uninformed buyers offer a general menu of screening contracts to privately informed sellers. Some sellers receive offers from multiple buyers while others receive offers from only one buyer, as in Burdett and Judd (1983). This specification allows us to smoothly vary the degree of competition, nesting monopsony and perfect competition a la Rothschild and Stiglitz (1976) as special cases. We show that the unique symmetric mixed-strategy equilibrium exhibits a strict rank-preserving property, in that different types of sellers have an identical ranking over the various menus offered in equilibrium. These menus can be all separating, all pooling, or a mixture of both, depending on the distribution of types and the degree of competition in the market. This calls into question the practice of using the incidence of separating contracts as evidence of adverse selection without controlling for market structure. We examine the relationship between exante welfare and the degree of competition, and show that in some cases an interior level of frictions maximizes welfare, while in other cases competition is unambiguously bad for welfare. Finally, we study the effects of various policy interventions — such as disclosure and non-discrimination requirements — and show that our model generates new, and perhaps counter-intuitive insights.

Postal Services: Survey of Competition Law Developments

The Court of Justice of the EU (‘CJEU’) has issued a significant judgment regarding grants of downstream access to the postal network of an incumbent operator in the bpost case, in which it concludes that differential treatment as between direct customers and consolidators regarding quantity discounts is not inconsistent with the non-discrimination requirement under Article 12 of the Postal Directive. The CJEU has also given a judgment under Article 102 TFEU concerning volume rebates given by an incumbent postal operator in a second case concerning Post Danmark. The European General Court has upheld a European Commission decision that certain Slovak legislative changes involved a re-monopolisation of hybrid mail and infringed Article 106(1) in conjunction with Article 102 TFEU. In the State aid area, the CJEU has ruled that Germany failed to recover State aid from Deutsche Post, with regard to business-to-business parcel services, while, in the case of Polish Post, the European Commission has approved the use of a compensation fund to finance the provision of a universal postal service. As regards the national competition authorities, in Germany the German Federal Cartel Office has found an abuse of dominant position by Deutsche Post concerning its tariffs for bulk mail customers by means of a margin squeeze, and in the UK Ofcom has issued a Statement of Objections in relation to Royal Mail's wholesale services for downstream access to its postal network.

Helping Your Facility Adjust to a Rainbow World

Helping Your Facility Adjust to a Rainbow World

ChinaaRare Earths: Export Restrictions and the Limits of Textual Interpretation

The China-Rare Earths decision of the Appellate Body addressed two main issues: (i) whether China’s obligations not to impose export duties under its accession protocol are subject to exceptions under Article XX of GATT, and (ii) the scope of the exception for China’s export quota measures relating to conservation under Article XX(g) of GATT. In accord with its China-Raw Materials decision, the Appellate Body found that there is no textual basis for application of the Article XX exception to China’s export duty obligations. This interpretation exalted a narrow contextual approach over an approach to interpretation that would focus on broader context, object, and purpose. The Appellate Body also approved the Panel’s overall approach to determining the availability of the Article XX(g) exception. This approach focused on the design and structure of China’s quota measure, but left unresolved important issues, including the extent to which non-conservation purposes may prevent use of the exception and the role of empirical evidence of effects in these determinations. While the Appellate Body found that there is no “even-handedness” requirement in Article XX(g) itself, we argue that the chapeau’s requirement of non-discrimination is an appropriate additional criterion for determining whether a policy with a target of reducing extraction of a natural resource satisfies the requirements of Article XX.