Non-Discrimination in Trade and Investment Treaties: Worlds Apart or Two Sides of the Same Coin?
102 American Journal of International Law, 48, 2008
43 Pages Posted: 17 Nov 2012
Date Written: 2008
For global business, international trade and investment are bound at the hip. When businesses trade internationally, goods or services cross borders; when they invest, it is capital and other factors of production that do so. Companies trade to supply their foreign investments; they invest to facilitate and diversify their trade. In contrast, international law addresses trade and investment separately and regulates them in ways that are dramatically different. This article tries to explain some of these differences and, in particular, to elucidate some of the consequences for international economic law. It does so through the lens of a specific legal obligation that, today, is prominent in the fields of both trade and investment: the principle of nondiscrimination, as it is embodied in the requirement to provide national treatment. Our analysis illustrates how the divergent history, goals, and incentives underlying treaty regimes should influence not only their design, but also the evolving interpretation of their specific obligations. This insight has important implications for the general debate on fragmentation of international law.
Keywords: trade, WTO, investment, BIT, ICSID, arbitration, discrimination, national treatment
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