Last year, I mentioned an issue related to the meaning of national treatment that is likely to come up in the Bilcon NAFTA Chapter 11 case. Here are some brief thoughts on the same issue from the U.S. non-disputing party submission:
NAFTA’s national treatment provision, Article 1102, is designed to prohibit discrimination on the basis of nationality. Article 1102 paragraphs (1) and (2) are not intended to prohibit all differential treatment among investors or investments. Rather, they are intended only to ensure that Parties do not treat entities that are “in like circumstances” differently based on their domestic nationality. If the challenged measure, whether in law or in fact, does not treat foreign investors or investments less favorably than domestic investors or investments on the basis of nationality, then there can be no violation of Article 1102.
Written submissions are great, but even better sometimes are the questions and answers at the hearing, which is streaming live on the web this week: http://www.pca-cpa.org/shownews.asp?nws_id=396&pag_id=1261&ac=view