Non-Discrimination and the Role of Regulatory Purpose in International Trade and Investment Law


Non-Discrimination and the Role of Regulatory Purpose in International Trade and Investment Law

9781785368103 Edward Elgar Publishing
Andrew D. Mitchell, Professor, Faculty of Law, Monash University, Australia, David Heaton, Barrister, Brick Court Chambers, London, UK and Caroline Henckels, Senior Lecturer, Faculty of Law, Monash University, Australia
Publication Date: 2016 ISBN: 978 1 78536 810 3 Extent: 192 pp
Central to this book is an analysis of the obligation upon states to ensure non-discrimination in the form of adherence to the principles of national treatment and most-favoured nation treatment. These are critical principles for both international trade law and international investment law, yet the case-law in both fields reveals significant inconsistencies regarding key elements of non-discrimination. Tribunals have invoked ‘regulatory purpose’ to assist in identifying relevant discrimination, but have done so without offering a definition of regulatory purpose and in significantly differing ways. This book explains these inconsistencies and offers a new definition of regulatory purpose.

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Non-discrimination requirements, such as most-favored nation and national treatment obligations, are central to both international trade law and international investment law. Significant inconsistencies between the fields are evident, however, in the way adjudicators have treated key elements of the test for discrimination. This book surveys and criticizes the manner in which tribunals have employed the concept of regulatory purpose in determining whether discrimination has occurred.

The authors of this book propose a new definition of regulatory purpose that assists in framing the test for unlawful discrimination in both fields of law. It provides a systematic and structured analysis of how regulatory purpose should—and should not—be used in applying non-discrimination norms. Throughout, the book compares and contrasts trade and investment law, drawing out several parallels and suggesting areas in which one legal system might answer or shed light on questions arising in the other.

With its comprehensive and up-to-date analysis of trade and investment jurisprudence, this book will appeal to practitioners and academics in the fields of trade and investment law. Lawyers and adjudicators will find it a useful source of ideas and proposals to inform their arguments and decisions. For government officials, it will be informative when considering the optimal way to structure measures that may affect the interests of foreign traders or investors. It will also provide a useful survey of the literature for academics, as well as a springboard for further comparison of international trade and investment law.

Critical Acclaim
‘This book makes it patently clear that one of the oldest and most important principles in international economic law remains misunderstood. As the authors rightly point out, the significant inconsistencies in the jurisprudence on non-discrimination and regulatory purpose do not provide stability and consistency in the WTO’s dispute settlement system. Nor does it assist the international investment regime, which has been criticized for its unstable jurisprudence. The novel definition of regulatory purpose proposed in this book is logical, well-reasoned and flexible, as is their critique of the jurisprudence, which is useful, comprehensive, and succinct. They also draw welcome comparisons and contrasts between the converging systems of international trade and investment law. It is relevant to all who work in these fields, including policymakers, and recommended accordingly.’
– Mark Huber, Journal of International Economic Law

‘This very topical book offers a stimulating and thoughtful insight into the core policy purposes of the non-discrimination obligations in the World Trade Organization (WTO) and international investment law. With their valuable critique on how WTO and investment adjudication bodies have treated and applied the concept of “regulatory purpose” to date, the authors offer a well-reflected and welcome case to ensure policy space and flexibility for states and governments throughout both regimes. This contribution hopefully will help to improve both mechanisms in an increasingly converging architecture of global trade and investment.’
– Gabrielle Marceau, World Trade Organization, Switzerland

‘Non-discrimination is a core principle of international economic law, yet its scope remains uncertain. A number of recent international trade and investment decisions have added to the confusion, rather than resolving this issue. This important new book adds clarity to a muddled debate. It examines the foundational issues related to the concept of non-discrimination, analyzes the cases, and makes sensible proposals for the future. It is a must read for those in the trade and investment law fields.’
– Simon Lester, Cato Institute, US
Contents: 1. Introduction 2. Non-Discrimination and Regulatory Purpose 3. National Treatment and Most-Favoured Nation Treatment in International Trade and Investment Law 4. The Role of Regulatory Purpose in Determining the Appropriate Comparator 5. Less Favourable Treatment 6. Conclusion Index

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