Nondiscrimination in GATT/WTO: was there anything to begin with and is there anything left?

Abstract

Nondiscriminatory treatment at its border of a like product coming from another WTO signatory (Article I on Most Favored Nation Treatment), and of domestic and foreign suppliers of like or similar products within its borders (Article III on National Treatment) are widely held to be the fundamental principles of GATT/WTO. Yet GATT included significant exceptions to nondiscriminatory treatment, for example, in its articles relating to customs unions and free trade areas, antidumping and safeguards. I argue that these exceptions have become dominant over time so that not much nondiscrimination remains in the global trading system. With the recent inclusion of services, intellectual property and trade-related investment measures, traditional GATT issues of tariff and non-tariff barriers at the border to market access have become less important compared to regulatory barriers inside the border. It is an open question whether nondiscrimination per se is a salient issue in thinking about multilateral disciplines in these new areas.