Non-Discriminatory Treatment in Investment Disputes

Federico Ortino

in Human Rights in International Investment Law and Arbitration

Published in print September 2009 | ISBN: 9780199578184
Published online February 2010 | e-ISBN: 9780191722561 | DOI:

Series: International Economic Law Series

 Non-Discriminatory Treatment in Investment Disputes

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This chapter analyzes the principle of non-discrimination on the basis of the nationality of the investor as one of the key legal guarantees provided to foreign investors by international investment agreements. As these guarantees may directly restrain states' legislative, administrative, or judicial measures taken to implement a host of public policies, their potential impact on human rights is not difficult to perceive. Given the general and undefined nature of the non-discrimination principle, its meaning and import can only be elucidated by arbitration, the chosen mechanism for the settlement of investment disputes. Based on an examination of the growing body of arbitral jurisprudence, the chapter argues that there still exists a wide margin of inconsistency in the way arbitral tribunals interpret the national treatment standard. The chapter emphasizes that the diversity of treaty language and the diversity of the interpretation of this language may represent a very useful learning ground for policy makers in the field.

Keywords: non-discrimination; international investment agreements; public policies; human rights law; treaty language; interpretation

Chapter.  10417 words. 

Subjects: Human Rights and Immigration

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