Non-discrimination

Non-discrimination is one of the most ubiquitous concepts in international trade law, and is reflected in obligations to grant foreign products, services and investments both national treatment and most-favoured nation (MFN) treatment. Non-discrimination obligations are also an increasingly prominent feature of international investment law, reflected in specific national treatment and MFN obligations, as well as being considered an element of the broader FET standard. To date, there have been considerable variations in how these provisions have been interpreted, showing that tribunals have not agreed on a consistent principle that should underpin non-discrimination obligations. We argue that for international economic law to fulfil its multifaceted purposes, non-discrimination obligations should be read in light of a common principle that less favourable treatment of products, services or investments in a competitive relationship should be disciplined to eliminate protectionist government action, while differential treatment that arises from a legitimate public purpose is permissible.