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International Investment Law and Comparative Public Law$
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Stephan W. Schill

Print publication date: 2010

Print ISBN-13: 9780199589104

Published to Oxford Scholarship Online: January 2011

DOI: 10.1093/acprof:oso/9780199589104.001.0001

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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
DOI:10.1093/acprof:oso/9780199589104.003.0008

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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