Transcript Document

Mata Kuliah Konsentrasi
WTO (GATT dan GATS)
Topik: MFN dan National Treatment
Dina W. Kariodimedjo
FAKULTAS HUKUM UGM
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Key concept:
Non-discrimination
• Principle of the most-favoured-nation (MFN)
treatment obligation
• Principle of the national treatment obligation
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GATT 1994
• Article I – MFN
• Article III - NT
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GATS
• Article II – MFN
• Article XVII - NT
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• The MFN and NT obligations of the GATT 1994
and the GATS prohibit discrimination on the
basis of ‘nationality’ or the ‘national origin or
destination’ of the product, service or service
supplier
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MFN in the GATT 1994
• Nature Article I:1 GATT 1994
– Covers ‘in law’ (de jure) and ‘in fact’ (de facto)
discrimination
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MFN Consistency Article I:1 GATT 1994 (#1)
• Test 1: Whether the measure at issue confers
a trade ‘advantage’ of the kind covered by
Article I:1;
• Test 2: Whether the products concerned are
‘like’ products; and
• Test 3: Whether the advantage at issue is
granted ‘immediately and unconditionally’ to
all like products concerned.
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Test 1: The MFN treatment obligation concerns any ‘advantage’
granted by any Member with respect to:
• Custom duties, other charges on imports and exports
and other customs matters;
• Internal taxes; and
• Internal regulation affecting the sale, distribution and
use of products.
(not only concerns advantages granted to other WTO
Members, but advantages granted to all other
countries –including non-WTO Members)
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Test 2: ‘like products’
• The characteristic of the products;
• Their end-use; and
• Tariff regimes of other Members.
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Test 3: advantage granted ‘immediately and
unconditionally’
• Once a WTO Member has granted an
advantage to imports from a country, it cannot
make the granting of that an advantage to
imports of other WTO Members conditional
upon those other WTO Members ‘giving
something in return’ or ‘paying’ for the
advantage.
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MFN in the GATS
• The nature of the MFN treatment obligation
provided for in Article II:1 GATS
• The test of consistency with Article II:1 GATS
• The exemptions from the MFN treatment
obligation of Article II:1 of the GATS
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The nature of the MFN treatment obligation provided
for in Article II:1 GATS
• Article II:1 prohibits discrimination between
like services and service suppliers from
different countries
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MFN consistency Article II:1 GATS (#2)
• Test 1: Whether the measure is a measure at
issue affects trade in services;
• Test 2: Whether the services or service
suppliers concerned are ‘like’ services or
services suppliers; and
• Test 3: Whether less favourable treatment is
accorded to the services or service suppliers
of a Member.
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Test 1: Whether the measure is a measure covered by
the GATS
• A measure by a Member; and
• A measure affecting trade in services
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Test 2: Whether the services or service suppliers
concerned are “like” services or services suppliers
• The characteristics of the service or the
service supplier;
• The classification and description of the
service in the United Nations Central Product
Classification (CPC) system; and
• Consumer habits and preferences regarding
the services or the service supplier.
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Test 3: Whether less favourable treatment is accorded
to the services or service suppliers of a Member
• If it modifies the conditions of competition
(Article XVII)
• De jure and de facto discrimination
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Exemptions from the MFN of the GATS
• No exemptions from the MFN of the GATT
1994
• Exemptions GATS – Article II:2 GATS:
– Member could list measure in the Annex on
Article II Exemptions
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NT consistency Article III:2, first sentence, GATT 1994 –
Internal Taxation (#3)
• Test 1: Whether the measure at issue is an
‘internal tax’;
• Test 2: Whether the imported and domestic
products are ‘like’ products; and
• Test 3: Whether the imported products are
not taxed in excess of the domestic products.
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NT Consistency Article III:2, second sentence, GATT 1994 - Internal Taxation, a
broader category of products – ‘like products’, ‘directly competitive or
substituable’ (#4)
• Test 1: Whether the measure at issue is an ‘internal
tax’;
• Test 2: Whether the imported and domestic products
are directly competitive or substituable;
• Test 3: Whether these products are not similarly
taxed; and
• Test 4: Whether the dissimilar taxation is applied so
as to afford protection to domestic products.
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NT Consistency Article III:4 GATT 1994 – Internal
Regulation (#5)
• Test 1: Whether the measure at issue is a law,
regulation or requirement covered by Article
III:4;
• Test 2: Whether the imported and domestic
products are ‘like’ products; and
• Test 3: Whether imported products are
accorded less favourable treatment.
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NT GATS – NT GATT
• NT Article XVII GATS is different from the NT
Article III GATT.
– NT GATS: applies only to the extent WTO
Members have explicitly committed themselves to
grant ‘national treatment’ in respect of specific
service sectors
– NT GATT: NT obligation has general application to
all trade
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NT Consistency Article XVII GATS (#6)
• Test 1: Whether the measure at issue affects
trade in services;
• Test 2: Whether the foreign and domestic
services or service suppliers are ‘like’ services
or service suppliers; and
• Test 3: Whether the foreign services or service
suppliers are granted treatment no less
favourable.
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The factors that must be considered in determining ‘likeness’
are, among other relevant factors: (#7)
• The characteristics of the products, services
and service suppliers;
• The classification of the products, services and
service suppliers;
• Consumer habits and preferences regarding
the products, services and service suppliers;
and
• For products, their end-use.
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Case
• Newland – a wine drinking country
• Richland – a beer exporting country
• Customs duties:
– 10% on wine
– 20% on non-alcoholic beer
– 30% on “A type” beers
• Exempted:
– “A type” beers produced in the US
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Bacaan wajib
• Van den Bossche, Peter, 2005, The Law and
Policy of the World Trade Organization, Text,
Cases and Materials, Cambridge University
Press, Cambridge, hlm. 308-374.
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• Terima Kasih
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