Symposium : Issues of Globalization

• Kurtz, Jürgen

Abstract

This article offers a contribution to the broader project of isolating the causes of inconsistency in investor–state arbitral jurisprudence. It examines the norm of national treatment and explores the methodological tendency of arbitrators to draw on complex WTO jurisprudence as a means of guiding the application of a similar but not identical legal norm in the investment treaty setting. It argues that, when one unpacks the complicated arbitral jurisprudence on national treatment, misuse of WTO law is the controlling factor for critical inconsistency in the jurisprudence. The article examines a central question surrounding national treatment under investment treaties being the role for competition between foreign and domestic actors in determining whether they stand ‘in like circumstances’. It also focuses on two key cases – Occidental v. Ecuador and Methanex v. USA – both of which are under-analysed in the secondary literature. The article concludes by identifying implications of the problematic interpretative methods at play and canvasses suggestions on reform models to incentivize probity and consistency in interpretation in this field of international law.