Standards of non-discrimination in international economic law

Diebold, Nicolas F (2011). Standards of non-discrimination in international economic law. International & comparative law quarterly, 60(4), pp. 831-865. Cambridge University Press 10.1017/S0020589311000418

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The principle of non-discrimination constitutes a corner-stone in different fields of international economic law, notably international trade in goods and services as well as intellectual property and investment protection. While its basic rationale appears to be straightforward, the application of the different legal elements which constitute a non-discrimination obligation has proven to be most challenging. Adjudicating bodies have been applying different interpretations and standards with regard to the legal elements of ‘less favourable treatment’, ‘likeness’ and ‘regulatory purpose’, which leads to a high fragmentation of the non-discrimination principle in international economic law. This article maps out the different theories for each of these elements on the examples of WTO law, NAFTA, bilateral investment treaties (BIT) and EU law and analyses how these theories affect the scope and liberalizing effect of the non-discrimination obligation. The article then attempts to develop a coherent factor-based application of non-discrimination rules suitable for all fields of international economic law. The article submits the theory that the elements of non-discrimination should not be applied as strict legal conditions which must be proven by a complainant, but as a range of factors which are weighed and balanced by the adjudicating bodies.

Item Type:

Journal Article (Original Article)

Division/Institute:

02 Faculty of Law > Department of Economic Law > Institute of European and International Economic Law

UniBE Contributor:

Diebold, Nicolas

Subjects:

300 Social sciences, sociology & anthropology > 340 Law

ISSN:

0020-5893

Publisher:

Cambridge University Press

Language:

English

Submitter:

Marceline Brodmann

Date Deposited:

23 Jul 2020 14:21

Last Modified:

28 Jul 2020 15:44

Publisher DOI:

10.1017/S0020589311000418

BORIS DOI:

10.7892/boris.115709

URI:

https://boris.unibe.ch/id/eprint/115709

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