The exchanges in the comments on this recent post on national treatment in investment law got me thinking about a more general national treatment point. It's easy to get bogged down in the technicalities of the national treatment obligation, so, if I may, I'd like to cut through all the detailed treaty provisions and jurisprudence in order to make a sweeping assertion about national treatment provisions in trade and investment law: There is, and always will be, some sort of "aim and effect" test when considering national treatment obligations and their exceptions. (Practically speaking, the exceptions work together with the national treatment obligation -- it doesn't make sense to think of them as completely separate ). They may not say it explicitly, or they may use less clear words to express these concepts -- goodbye "aim and effect", hello "detrimental impact stemming exclusively from a legitimate regulatory distinction"! -- but that's what (almost) all adjudicators are actually doing when they evaluate these claims. The question isn't whether you look at "aim and effect." It is where, when, and how you look at it: In "likeness"? In "so as to afford protection"? In "treatment"? In the exceptions?
The one exception I can see is that there is a view in trade/investment law that doesn't seem to look at effect at all. It just looks at whether one foreign product/investment/investor is treated worse than one like domestic product/investment/investor. But that isn't an effect standard, as far as I can see. Without looking at the whole group, pulling out two individual products/investments/investors for a comparison isn't really evidence of anything.
In trade law, I think this view is on its way out, although it still seems to pop up from time to time. In investment law, the battle is still being fought, but I don't follow investment law as closely as trade law, so I can't give a very good assessment on where things stand.
This is somewhat controversial and contested, I know, and I haven't given any cites, just assertions. If people are in the mood to go into it further we can discuss it in the comments.