This Note will argue in favor of a unified approach to the National Treatment standard across international trade and investment protections in recently concluded European Union Free Trade Agreements (“FTAs”). In recent years, existing inconsistencies between international trade and international investment jurisprudence have become more pronounced as the two legal spheres increasingly intersect. In the specific context of the EU, innovations in several recently concluded FTAs, such as EU-Canada Comprehensive Economic and Trade Agreement (“CETA”), the EU-Vietnam FTA, the EU-Singapore FTA, and the draft EU-Japan Economic Partnership Agreement (“EPA”), exemplify the substantive and procedural convergence of these two areas of law. To this end, this Note will critique existing discrepancies between the WTO and the international investment law approach to the National Treatment standard, focusing principally on case law surrounding i) the “likeness” comparator, ii) the “less favorable treatment” standard, and iii) the relevance of regulatory purpose. In examining each of these principal elements, it becomes evident that disparities across these legal standards are no longer defensible in the context of the new generation EU FTAs. As such, these treaties pro-vide a unique opportunity for future investment adjudicators to utilize comparative WTO and investment jurisprudence to minimize existing discrepancies and uncertainties arising out of shared trade and investment norms.

Continue reading National Treatment in International Economic Law: The Case for Consistent Interpretation in New Generation EU Free Trade Agreements