Chapter

The Merits and Limits of Comparativism: National Treatment in International Investment Law and the WTO

Jürgen Kurtz

in International Investment Law and Comparative Public Law

Published in print October 2010 | ISBN: 9780199589104
Published online January 2011 | e-ISBN: 9780191595455 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199589104.003.0008
The Merits and Limits of Comparativism: National Treatment in International Investment Law and the WTO

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This chapter critically examines cross-fertilization of jurisprudence across the shared obligation of national treatment in WTO law and investment treaties. It focuses on the methodological tendency of investor-State arbitral tribunals to draw on complex WTO jurisprudence when ruling on a similar but not identical legal norm in the investment treaty setting. The chapter begins by identifying and disaggregating the separate historical imperatives in the use of the national treatment across the two regimes. It then uses that context to examine how comparative analysis might be employed to offer sensible and constructive insights. That ideal methodology is then contrasted against the case-law, which reveals critical errors by investor-State tribunals in using WTO law in the adjudication of three key interpretative questions. The chapter concludes by identifying useful juridical mechanisms in WTO law that have not, to date, been explored and which might be productively used to guide future arbitral tribunals.

Keywords: non-discrimination; national treatment; WTO; NAFTA; international investment law

Chapter.  18111 words. 

Subjects: Constitutional and Administrative Law

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