Discrimination on the Basis of Nationality: Determining Likeness in Human Rights and Investment Law
When comparing nationality-based discrimination prohibitions in human rights and investment law, the question arises whether human rights jurisprudence could be instructive for interpretations of the equivalent provisions in investment law or whether the objective, nature, and content of the respective fields differ so as to impede inter-field guidance. Instead of looking at WTO jurisprudence on most-favoured-nation and national treatment to concretize similar provisions in investment law, and hence to conclude from the absence of Article XX GATT-type provisions in investment treaties that exceptions are not permissible, investment tribunals could obtain inspiration from the human rights law interpretations. Human rights dispute settlement bodies and treaty-based committees have allowed proportional differentiations for legitimate policy purposes without explicit basis in the treaty texts but rather as a factor in determining likeness. Adopting such an analysis in investment law could help to avoid manifestly unreasonable results following from the rejection of any differentiation.
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