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Abstract: National treatment is an old trading concept, which has found its way into bilateral investment treaties and the investment chapter of free trade agreements. These treaties and agreements provide that a foreign investor or investment must be accorded treatment “no less favourable” than the treatment accorded to domestic comparators who are in “like circumstances”, but fail to defi ne or explain the terms “less favourable” or “like circumstances”. This has led to arbitration tribunals interpreting these terms in the exercise of considerable and mostly unguided discretion. Such exercise of discretion has resulted in a number of inconsistent and at times confl icting decisions, which adversely affect the effective operation of the international investment mechanisms. This article examines the approaches that different arbitral tribunals have adopted in the interpretation of “national treatment” and proceeds to examine how to improve the unsatisfactory situation. It argues that adherence to the precepts of the Rule of Law in the conduct of arbitration proceedings will lead to more consistent arbitration decisions.
Keywords: national treatment; less favourable treatment; like circumstances; likeness; Rule of Law; discriminatory treatment; differential treatment; discretion; good faith; jus cogens
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