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Abstract

Both the GATT and the GATS provisions have the same points of view on defining discrimination as an unequal treatment given to foreign providers compared to treatment given to domestic providers. Discrimination under the national treatment of the GATT and the GATS is considered as a practice that prevents foreign providers from enjoying all comfortable facilities that are given to domestic providers. Non-discriminatory application in both provisions might also be interpreted in the market access issue. Moreover, it is not considered as discrimination of national treatment of both provisions if it concerns on laws, regulations, or requirement regulating the procurement by government agencies. Both provisions use likeness and treatment no less favourable test in order to determine whether or not there is a discrimination against foreign products or services or services suppliers. There are several distinctions of discriminations between the principle of national treatment under the GATT and the GATS. The discrimination under the principle of national treatment of the GATT has general application to all trade in goods. On the other hand, the discrimination under national treatment obligation for trade in services under the GATS only applies if commitments have been scheduled. It can be concluded that the discrimination of national treatment under the GATT and the GATS seems to be de facto discrimination because both provisions do not provide the sufficient measures in order to find a violation. It results from; the GATS national treatment is derived from traditional concepts of the GATT that the application of the national treatment of the GATT is adduced by the GATS.

References

Legislations: The General Agreement on Tariffs and Trade The General Agreement on Trade in Services Cases: Appelate Body Report, Korea-Alcoholic Beverages Panel Report, Japan – Alcoholic Beverages II Appellate Body Report, Japan- Alcoholic Beverages II Textbooks: C. Arup, The World Trade Organization Knowledge Agreements (2nd edn Cambridge University Press, New York 2008)G. Feketekuty, ‘ Assessing and Improving the Architecture of GATS’ in P. Sauve and R.M.Stern (eds), GATS 2000: New Direction in Services Trade Liberalization, (Brooking Institution Press, Washington D.C. 2000) G. Karsenty, ‘Assessing Trade in Services by Mode of Supply’ in P. Sauve and R.M.Stern (eds), GATS 2000: New Direction in Services Trade Liberalization, (Brooking Institution Press, Washington D.C. 2000) M.J. Trebilcock and R.Howse, TheRegulation of International Trade (3rd edn Routledge, Oxon 2005) P.Van den Bossche, The Law and Policy of the World Trade Organization (2nd edn Cambridge University Press, New York 2008) R. Kariyawasam, International Economic Law and the Digital Divide: A New Silk Road? (Edward Elgar, Massachusetts 2007) S. Lester and others (eds), World Trade Law: Text, Materials and Commentary (Hart Publishing, Portland 2008) T. Warren and C. Findlay, ‘ Measuring Impediments to Trade in services’ in P. Sauve and R.M.Stern (eds), GATS 2000: New Direction in Services Trade Liberalization, (Brooking Institution Press, Washington D.C. 2000) Articles: Guojun Li, National ‘National Treatment Under the General Agreement on Trade in Services” (2010) 6 Cambridge Student L. Rev. 74 Wei Wang, ‘National Treatment in Financial Services in the Context of the GATS/ WTO’ (2003-2004) Stud. Int’l Fin. Econ. & Tech. L. 149 Aaditya Mattoo, ‘National Treatment in the GATS, Corner-Stone or Pandora’s Box’ (1997) 31 J. World Trade 107

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