National treatment and most favoured nation treatment

Abstract

Chapter 3 reviews the pivotal EU principle of non-discrimination as an equivalent of national and most-favoured nation (MFN) treatments in BITs. The main argument of this chapter is that the EU principle of non-discrimination protects investment beyond the safeguards of national and MFN treatments found in intra-EU BITs. Shielded by the EU law safeguards against restrictions to intra-EU freedoms, EU investors benefit from the liberalised internal market, including market access, product harmonisation, as well as corporate mobility among the host states. Furthermore, the principle of non-discrimination has a broader definition under EU law than under investment law, banning any direct and indirect discriminatory impediment for the foreign investor that may not be justified by an overriding public interest. Therefore, protection given to investors under the principle of non-discrimination is a more competitive regulatory framework of investment rights when compared to MFN and national treatment clauses in intra-EU BITs.