Articles I and Ⅱ of the GATT 1994 have been applied, in past practice, to measures involving de facto discrimination.
The GATS negotiators chose to use different language in Article Ⅱ and Article ⅩⅦ of the GATS in expressing the obligation to provide ‘treatment no less favorable. The question naturally arises: if the GATS negotiators intended that ’treatment no less favorable should have exactly the same meaning in Articles Ⅱ and ⅩⅦ of the GATS, why did they not repeat paragraphs 2 and 3 of Article ⅩⅦ in Article Ⅱ? But that is not the question here. The question here is the meaning of ’treatment no less favorable with respect to the MFN obligation in Article Ⅱ of the GATS. There is more than one way of writing a de facto non-discrimination provision. Article ⅩⅦ of the GATS is merely one of many provisions in the WTO Agreement that require the obligation of providing ’treatment no less favorable. The possibility that the two Articles may not have exactly the same meaning does not imply that the intention of the drafters of the GATS was that a de jure, or formal, standard should apply in Article Ⅱ of the GATS. If that were the intention, why does Article Ⅱ not say as much? The obligation imposed by Article Ⅱ is unqualified. The ordinary meaning of this provision does not exclude de facto discrimination. Moreover, if Article Ⅱ was not applicable to de facto discrimination, it would not be difficult - and, indeed, it would be a good deal easier in the case of trade in services, than in the case of trade in goods - to devise discriminatory measures aimed at circumventing the basic purpose of that Article.