Der Nichtdiskriminierungsstandard der Inländergleichbehandlung im Internationalen Investitionsrecht

Abstract

Non-discrimination in the form of national treatment constitutes a cornerstone of international investment law. Its overall goal is the prevention of protectionist measures favouring domestic investors. While national treatment obligations are commonly included in bilateral and multilateral international investment agreements, the respective provisions on national treatment are not always identical. Despite the differences in wording, investment tribunals have developed a relatively uniform three-step test to determine whether a state has violated the national treatment obligation. Firstly, the tribunals assess whether a foreign investor is in ‘like circumstances’ or ‘like situations’ with a domestic comparator; secondly, they identify whether there has been unequal treatment between the foreign and domestic investors; and thirdly, they examine if legitimate reasons serve as a justification for the difference in treatment. Given the lack of explicit provisions on justifications in international investment agreements, tribunals often tend to incorporate the question whether a justification for unequal treatment exists in the ‘like circumstances’-test.