WikiLeaks has posted the Jan 20, 2015 version of the TPP investment chapter. The NY Times reports here. I'm going to do two short posts, one on national treatment and one on the minimum standard of treatment. Here's the national treatment provision:
Article II.4: National Treatment12
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 in its territory.
2. Each Party shall accord to covered investments treatment no less favorable than that it accords, in like circumstances, to investments in its territory of its own investors with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of investments.
3. For greater certainty, the treatment to be accorded by a Party under paragraphs 1 and 2 means, with respect to a regional level of government, treatment no less favorable than the most favorable treatment accorded, in like circumstances, by that regional level of government to investors, and to investments of investors, of the Party of which it forms a part.
----------------------------------
12 [For greater certainty, whether treatment is accorded in “like circumstances” depends on the totality of the circumstances, including whether the relevant treatment distinguishes between investors or investments on the basis of legitimate public welfare objectives.]
I have long been frustrated with efforts to put substantive considerations relating to the effect or intent of a measure into likeness. At the WTO, I feel like that approach is on the way out (although you never know when it might pop up again). But in investment law, it seems to live on, and, here, it is used very clearly in the footnote. To accomplish the same thing, but with greater clarity, I'd incorporate the same concept, but rely on different language. I would say the following in the footnote:
"whether treatment accorded to non-nationals is less favorable depends on the totality of the circumstances, including whether the relevant treatment distinguishes between investors or investments on the basis of legitimate public welfare objectives."
In this way, the objectives of the measure can be evaluated: Are they being used for nationality-based discrimination, or are they being used for legitimate objectives?
