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Non-discrimination: Two rules

Non-discrimination: Two rules. Most favoured nation treatment (MFN) Main elements Significance in international law Link to the principle of sovereign equality between states National treatment (NT) Main elements Historical background Link to general principles on non-discimination

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Non-discrimination: Two rules

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  1. Non-discrimination: Two rules • Most favoured nation treatment (MFN) • Main elements • Significance in international law • Link to the principle of sovereign equality between states • National treatment (NT) • Main elements • Historical background • Link to general principles on non-discimination • Are there reasons for differential treatment of MFN and NT?

  2. Non-discrimination: Two elements • The basic ”if … then …” distinction • Who or what shall be compared? • General or case-by-case? Average or best treated? • Physical characteristics? • Potential competitive relationship? • Systems of classification? • Opinions in the market? • The obligation of ”equal treatment” • Absolute or relative? Explicit and implicit? • De minimis? • Purpose? • Effects?

  3. NT I • Scope of application • Public authority – public as an economic actor – private parties • Internal measures • Local authorities • Taxes: direct vs. indirect taxes, payment for services • ”laws, regulations and requirements” • Government procurement • Subsidies

  4. NT II • Who shall be compared? • Threshold? • The problem of manipulation of internal markets • Processes and production methods (PPMs) • Obligation of equal treatment • Implicit discrimination • Burden of proof

  5. MFN • Scope of application • Border measures vs. internal measures • Safeguards, anti-dumping, countervailing duties, subsidies • Who or what shall be compared? • Average or best treated? • Obligation of equal treatment • ”any advantage …” • Degree of flexibility • Explicit vs. implicit differential treatment • Conditionality • Importance during negotiations • Exceptions • Regionalism and bilateralism – compensation? • Developing countries, the ”GSP trap”

  6. Non-discrimination in IEL • The starting point: merchants and traders • Trade in goods • Scope of application from tariffs to internal measures • Subsidies, performance requirements and government procurement? • Extension to services and service providers • The difference between MFN and NT: Top down or bottom up? • Difference in wording between GATT art. I and GATS art. II • Extension to investment • Top down or bottom up? • The problem of bilateralism • The problem of comparing investors

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