His full post:
I don't think he's missing anything. I think he's got it pretty much right. I, too, am skeptical of the NT differences, although there may be new evidence that pops up (and a "market access" claim might work). Also, if we are talking about the GATS, there's a question of whether any relevant commitments have been made, and even if they have been, there is the option to withdraw them. So, it would be a tough road to get real relief for this at the WTO.
On the BIT issues, I think the substantive obligations would be broader, and thus more useful, but like Dan, I have doubts that China (or the U.S.) would sign onto something like this. Could either side really tolerate the foreign investor complaints that might result? Of course, as I've said many times, I don't know much about what goes on behind the scenes in these kinds of negotiations, so I could be completely wrong.