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Introductory Remarks by Julian Arato

Published online by Cambridge University Press:  22 March 2019

Julian Arato*
Affiliation:
Brooklyn Law School.

Extract

The principle of non-discrimination lies at the core of international economic law (IEL). The norm is classically instantiated across IEL in two recurrent principles: national treatment (NT); and most favored nation (MFN). NT prohibits vertical discrimination—where a state affords preferable treatment to its own nationals as compared to foreigners. MFN prohibits horizontal discrimination—where a state treats nationals from one foreign state better (or worse) than nationals from another. These principles are foundational in IEL, and thus both well-known and well-considered. Indeed, until recently, the questions of the day across IEL concerned to what extent international trade and international investment law have moved beyond the non-discrimination paradigm. Yet, we see a renewed and growing importance in these classical norms in the practice of IEL over the past few years—in both treaty-making and dispute resolution. The purpose of this roundtable is to discuss non-discrimination's renewed centrality across IEL, and the extent to which the scope and contours of NT and MFN may be in flux across its varied regimes.

Type
The Once and Future Law of Non-Discrimination: Revisiting Most Favored Nation and National Treatment
Copyright
Copyright © by The American Society of International Law 2019 

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Footnotes

This panel was convened on Thursday, April 5, 2018 at 11:00 a.m., by its moderator, Julian Arato of Brooklyn Law School, who introduced the panelists: Simon Batifort of Curtis, Mallet-Prevost, Colt & Mosle; Emi Nagaoka of Baba & Sawada; Federico Ortino of King's College London; Jennifer Thornton, former United States Trade Representative; and Tania Voon of the University of Melbourne.

The authors would like to thank Kathleen Claussen and Romain Zamour for their kind and significant efforts in organizing our panel at the 112th ASIL Annual Meeting. Without their dedicated support, this discussion would not have been possible.

References

1 Such as GATT Art. XI and GATS Art. XVI (the strict market access provisions); the deep integration regulatory disciplines in the Technical Barriers to Trade (TBT) and Sanitary and Phyto-Sanitary Measures (SPS) Agreements; and the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS).