Unit 6 - Background & Issues

Unit 6 covers three aspects of national treatment:

First, we examine the prohibition on national treatment or internal discrimination under GATT/WTO Article III in general.  Think of national treatment as complementary to the MFN principle in the sense that MFN means that any WTO member state is theoretically entitled to any trade benefit offered by a WTO member state to any other state.  National treatment of trade in goods means simply that goods produced by foreign enterprises from a WTO member state are entitled to the same (regulatory;  meaning tax, transportation, inspection fees, etc.) treatment as domestic enterprises’ goods.

Second, we shall look at the Canadian periodicals (Sports Illustrated) WTO proceeding to see again how the media and cultural preservation exception claims may work in practice traditionally (at least for written materials), in terms of claims being raised equally often under MFN and national treatment provisions.  The issue may be stated in the alternative that acceptance of cultural or media exceptions is not universal, or that it remains difficult to draw a line between cultural support and commercial discrimination, or that smaller cultural and language groups are simply increasingly visible in pressing for protections of their distinctive cultures or languages, and so protections are more likely to become law more recently in the FTA context.  Is Canadian ice hockey sports coverage to be understood as more or less distinctively Canadian than Canadian soap operas in terms of whether they should benefit from special government treatment?

Third, we shall look at how national treatment claims might be dealt with in the GATS versus FTA (TPP, or USMCA as NAFTA 2.0) services area, returning again for the moment to e-commerce (to address the cross-border internet access questions hidden there).  We shall spend a full class next week on the digital commerce question and trade law complications, so think of what we do this week as only a start.