- Title Pages
- Dedication
- Foreword
- Preface
- Table of Cases
- Table of Treaties, Legislation, and Related Instruments
- List of Abbreviations
- List of Contributors
- 1 International Investment Law and Comparative Public Law—an Introduction
- 2 Minimum Standards of Procedural Justice in Administrative Adjudication
- 3 Public Law Concepts to Balance Investors’ Rights with State Regulatory Actions in the Public Interest—the Concept of Proportionality
- 4 The Concept of Indirect Expropriation in Comparative Public Law—Searching for Light in the Dark
- 5 Fair and Equitable Treatment, the Rule of Law, and Comparative Public Law
- 6 Full Protection and Security
- 7 Cain and Abel: Congruence and Conflict in the Application of the Denial of Justice Principle
- 8 The Merits and Limits of Comparativism: National Treatment in International Investment Law and the WTO
- 9 Discrimination on the Basis of Nationality: Determining Likeness in Human Rights and Investment Law
- 10 Umbrella Clauses as Public Law Concepts in Comparative Perspective
- 11 Transfer of Funds: the Interaction between the IMF Articles of Agreement and Modern Investment Treaties: a Comparative Law Perspective
- 12 State Responsibility and Comparative State Liability for Administrative and Legislative Harm to Economic Interests
- 13 Legitimate Expectations and Informal Administrative Representations
- 14 Revocation and Cancellation of Concessions, Operating Licences, and Other Beneficial Administrative Acts
- 15 Public-Private Partnerships: Award, Performance, and Remedies
- 16 Economic Emergency Powers: A Comparative Law Perspective
- 17 Property Protection and Protection of Cultural Heritage
- 18 Taxation and Investment: Constitutional Law Limitations on Tax Legislation in Context
- 19 Comparative Taxation Procedure and Tax Enforcement
- 20 Investment Treaty Arbitration, Procedural Fairness, and the Rule of Law
- 21 Procedure in Investment Treaty Arbitration and the Relevance of Comparative Public Law
- 22 The Need for Public Law Standards of Review in Investor-State Arbitrations
- 23 Primary and Secondary Remedies in International Investment Law and National State Liability: A Functional and Comparative View
- 24 Comparative Compensation for Expropriation
- 25 Transparency and Representation of the Public Interest in Investment Treaty Arbitration
- Index
The Merits and Limits of Comparativism: National Treatment in International Investment Law and the WTO
The Merits and Limits of Comparativism: National Treatment in International Investment Law and the WTO
- Chapter:
- (p.243) 8 The Merits and Limits of Comparativism: National Treatment in International Investment Law and the WTO
- Source:
- International Investment Law and Comparative Public Law
- Author(s):
Jürgen Kurtz
- Publisher:
- Oxford University Press
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
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- Title Pages
- Dedication
- Foreword
- Preface
- Table of Cases
- Table of Treaties, Legislation, and Related Instruments
- List of Abbreviations
- List of Contributors
- 1 International Investment Law and Comparative Public Law—an Introduction
- 2 Minimum Standards of Procedural Justice in Administrative Adjudication
- 3 Public Law Concepts to Balance Investors’ Rights with State Regulatory Actions in the Public Interest—the Concept of Proportionality
- 4 The Concept of Indirect Expropriation in Comparative Public Law—Searching for Light in the Dark
- 5 Fair and Equitable Treatment, the Rule of Law, and Comparative Public Law
- 6 Full Protection and Security
- 7 Cain and Abel: Congruence and Conflict in the Application of the Denial of Justice Principle
- 8 The Merits and Limits of Comparativism: National Treatment in International Investment Law and the WTO
- 9 Discrimination on the Basis of Nationality: Determining Likeness in Human Rights and Investment Law
- 10 Umbrella Clauses as Public Law Concepts in Comparative Perspective
- 11 Transfer of Funds: the Interaction between the IMF Articles of Agreement and Modern Investment Treaties: a Comparative Law Perspective
- 12 State Responsibility and Comparative State Liability for Administrative and Legislative Harm to Economic Interests
- 13 Legitimate Expectations and Informal Administrative Representations
- 14 Revocation and Cancellation of Concessions, Operating Licences, and Other Beneficial Administrative Acts
- 15 Public-Private Partnerships: Award, Performance, and Remedies
- 16 Economic Emergency Powers: A Comparative Law Perspective
- 17 Property Protection and Protection of Cultural Heritage
- 18 Taxation and Investment: Constitutional Law Limitations on Tax Legislation in Context
- 19 Comparative Taxation Procedure and Tax Enforcement
- 20 Investment Treaty Arbitration, Procedural Fairness, and the Rule of Law
- 21 Procedure in Investment Treaty Arbitration and the Relevance of Comparative Public Law
- 22 The Need for Public Law Standards of Review in Investor-State Arbitrations
- 23 Primary and Secondary Remedies in International Investment Law and National State Liability: A Functional and Comparative View
- 24 Comparative Compensation for Expropriation
- 25 Transparency and Representation of the Public Interest in Investment Treaty Arbitration
- Index
