From Collision to Collaboration
Chapter 5: The National Treatment principle and intellectual property investments
The National Treatment (NT) principle, which belongs to the ‘standard repertoire of bilateral investment treaties’, imposes the obligation on Host States to ‘protect [foreign investors] against discrimination, whether de jure or de facto, on the basis of nationality’. Its purpose is to ‘require that a host country treat an investor or an investment . . . no less favourably than they treat their own national investors or investments made by their own nationals’. As a consequence of its highly protective characteristic as far as the legal status of investors is at stake, the NT standard of protection has been described as: perhaps the single most important standard of treatment enshrined in international investment agreements (IIAs). At the same time, it is perhaps the most difficult standard to achieve, as it touches upon economically (and politically) sensitive issues. NT provisions typically provide that: Each Party shall accord to investors of the other Party treatment no less favourable than that it accords, in like circumstances, to its own investors. Such provisions, and the ‘relative homogeneity of the clauses in BIT practice’, all highlight the relative, contingent or fact-specific aspect of the standard, which is also the main weakness associated with it, as emphasized by Professor Bjorklund: ‘[t]heoretically, at least, national treatment obligations could provide no protection to foreigners should nationals be treated badly. This potential drawback illustrates the weakness of national treatment provisions.
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