Trade, Investment and Intellectual Property
Edited by Anselm Kamperman Sanders
Chapter 7: National treatment in international investment law and arbitration: A relative standard for autonomous public regulation and sovereign development
With 3200 agreements, including 2860 bilateral investment treaties (BITs) and 340 ‘other’ international investment agreements (IIAs), today’s international investment regime has reached an unprecedented level of complexity. In this bewildering array of legal instruments, international investment standards of treatment are meant to achieve the greater level of clarity and certainty international investors are supposedly seeking. Hence, international investment standards of treatment have successively taken a large variety of sophisticated yet sometimes ambiguous shapes, from the classical non-discrimination principles commonly manifested in the national treatment and most-favoured-nation (MFN)treatment to a customary minimum standard of treatment, now often expressed in terms of a broader treaty-based ‘fair and equitable treatment’ (FET), which has gained worldwide prominence but remains problematic with regard to the very extensive interpretation of States’ obligations it encourages. Although less debated than the controversial FET standard, the national treatment standard today deserves to be carefully reinvested as it poses a number of fundamental questions as to the balance between States’ autonomy to regulate foreign investments liberalization for public interest and sovereign economic development, and investors’ legitimate expectation for market access, protection and equality of treatment. In simple terms indeed, national treatment could be defined as a principle whereby a host country extends to foreign investors, and foreign investments, a treatment no less favourable than that it accords, in like circumstances, to its own investors and investments. In doing so, the host country ensures a degree of competitive equality between nationals and foreigners while resisting protectionism.
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