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Vol 22 No 3 March/April 2017

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Company Directors: Duties, Liabilities and Remedies

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Non-Discrimination in International Trade in Services: ‘Likeness' in WTO/GATS

ISBN13: 9780521191869
Published: October 2010
Publisher: Cambridge University Press
Country of Publication: UK
Format: Hardback
Price: £93.00
Paperback edition , ISBN13 9781107697669

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The principle of non-discrimination is fundamental to the regulation of international trade in goods and services. In the context of trade in goods, the concept of 'like products' has become a key element of the legal analysis of whether a trade obstacle violates GATT non-discrimination obligations.

The equivalent concept of 'like services and service suppliers' in GATS rules on non-discrimination has received little attention in WTO jurisprudence. In light of the remaining uncertainties, Nicolas Diebold analyses the legal problems of the GATS 'like services and services suppliers' concept using a contextual and comparative methodology.

The 'likeness' element is not analysed in isolation, but in context with 'less favourable treatment' and regulatory purpose as additional elements of non-discrimination. The book also explores how far theories from non-discrimination rules in GATT, NAFTA, BITs and EC as well as market definition theories from competition law may be applied to 'likeness' in GATS.

  • Addresses important technical difficulties in the most-favoured-nation and national treatment obligation in GATS (Articles II and XVII), in particular the relationship between 'likeness' of services and 'likeness' of suppliers as well as 'likeness' of services supplied by different methods and different modes of supply
  • Places the legal element of 'likeness' in GATS in its context within the entire structure of the non-discrimination principle, in particular the elements of 'less favourable treatment' and regulatory purpose
  • Compares the 'likeness' concept in different fields of international economic law, allowing for valuable conclusions on similarities and differences in the interpretation and application of the 'likeness' concept
  • Explores the extent to which competition law theories on the definition of relevant markets may be transposed for the analysis of 'likeness' in non-discrimination

International Trade

Part I. Foundations
1. Objective and forms of non-discrimination
2. Particularities of trade in services and GATS
3. Legal elements of non-discrimination obligations
4. Concluding summary: reconciling the three elements

Part II. Framing the Conceptual Breadth of 'Likeness' in GATS
5. 'Likeness' in national treatment
6. 'Likeness' in MFN treatment
7. Comparative analysis of 'likeness'
8. Concluding summary: economic standard

Part III. GATS-Specific 'Likeness' Issues
9. The scope of GATS rules on non-discrimination
10. 'Likeness' across 'services' and 'suppliers'
11. 'Likeness' across 'methods' and 'modes' of supply
12. Concluding summary: merged test and cross-over 'likeness'

Part IV. Methodology for the 'Likeness' Analysis in GATS
13. The border tax adjustments framework
14. Applying market definition theories to 'likeness'
15. The PPM problem in the GATS 'likeness' context
16. Concluding summary: substitutability framework

Summary of conclusions.