The Wto Principle Of Non-discrimination Under The Facts Of Discrimination Identified

The fundamental obligation of the Members of the World Trade Organization (WTO) is to accord each other most-favored-nation and national treatment, which is provided under GATT Article I, III and the relative provisions. A Member's national measures could violate non-discrimination obligation both overtly and implicitly.The overt violation always involves the national measures referring to the origin-based differentiation, while the implicit violation could exist in the context of origin-neutral national measures. The former situation will be called de jure discrimination, and the latter one is regarded as de facto discrimination, which gains attention in this article.In practice, there exit two opposing approaches to this question on the Panel and Appellate Body levels: diagonal test and asymmetric test. The definition and application of the two approaches will go first before a thorough review of GATT/WTO's jurisprudence. Following this, the exploration of the positions expressed in the WTO related literature and a comparison between the two approaches will give out a preliminary conclusion which is in favor of the asymmetric test. However, when applied, the asymmetric test raises some problematic details, some of which will be discussed in the following section and will gain solutions from the view of the writer. Based on all the above analysis, a final conclusion will go for the asymmetric test. It is believed that the asymmetric approach will become a legal requirement in a violation finding and will definitely play a more important role in the dispute settlement. Finally, the suggestions will be given as how to accommodate and take advantage of WTO law to protect our products from discrimination.