A couple days ago, Alan pointed out that treaty interpretation is more than just titles of provisions. And he's right, of course. In addition to the context (which is how I think of these titles), he refers to the text, the negotiating history, the intention of the parties, and the object and purpose of the treaty, among other things. So, let's talk about National Treatment in investment treaty provisions, using these interpretive tools. We can't talk about all the investment treaty National Treatment provisions, of course, so let's just focus on one, Article 1102 of NAFTA Chapter 11:
Article 1102: National Treatment
1. Each Party shall accord to investors of another Party treatment no less favorable than that it accords, in like circumstances, to its own investors with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of investments.
2. Each Party shall accord to investments of investors of another Party treatment no less favorable than that it accords, in like circumstances, to investments of its own investors with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of investments.
3. The treatment accorded by a Party under paragraphs 1 and 2 means, with respect to a state or province, treatment no less favorable than the most favorable treatment accorded, in like circumstances, by that state or province to investors, and to investments of investors, of the Party of which it forms a part.
4. For greater certainty, no Party may:
(a) impose on an investor of another Party a requirement that a minimum level of equity in an enterprise in the territory of the Party be held by its nationals, other than nominal qualifying shares for directors or incorporators of corporations; or
(b) require an investor of another Party, by reason of its nationality, to sell or otherwise dispose of an investment in the territory of the Party.
What jumps out at me in the first two paragraphs is the reference to "of another Party." To me, this makes the focus of the obligation the treatment of one Party as compared to the treatment of another Party. Along the same lines, these paragraphs refer to a Party's "own investors." So, I see the text as providing a strong indication that any non-discrimination obligation is based on nationality. In essence, it is a comparison of the treatment of two nations, in particular the treatment of investors of one nation compared to the treatment of investors of another nation.
Making "National Treatment" the title supports this view. I see "National" as a fairly precise term, leaving little doubt that "nations" will play a key role in the analysis.
Moving on to other interpretive factors, I don't know anything about the negotiating history on these issues. If anyone knows something, feel free to mention it in the comments.
As to the intention of the parties, my impression was that all of the NAFTA Parties, at least now if not originally, take the view that the provision is about nationality-based discrimination. But correct me if I'm wrong.
On the object and purpose of the NAFTA, I don't know if there's anything there that tells us much about how to interpret the National Treatment provisions. But I'm open to suggestions.
Finally, there is paragraph 3, which provides some sort of context. What does it mean exactly? I have some thoughts, but I'll save them for now, to be brought out in case someone make some arguments under this provision in the comments.
One last point, of a more general nature. If National Treatment provisions in investment treaties are not based on "nationality," what are they based on? If not nationality, what is the "class" that is being protected? Or is there some variation of a "class of one" theory going on here, with the investor arguing, in essence, "you discriminated against me"?
