Here's the conclusion of the paper by Arwel Davies that I mentioned a while back:
The advice for Treaty drafters is that there is some scope for clarifying the TNLF [treatment no less favourable] standard, to the extent that phrases such as ‘no less favourable than the most favourable treatment’ can presently be understood as requiring best treatment. Treaty drafters could consider whether there is any alternative language which could clarify the underlying rationale of this language in provisions applicable to the states and provinces of NAFTA and BIT Parties. Such a move could improve the clarity of decisions in investment disputes. It is anomalous to find within some decisions that best treatment has been endorsed under the TNLF analysis while also effectively rejected in other parts of the analysis via consideration of evidence on the distribution of the measure’s impacts. If the Treaty language was not capable of being understood as requiring best treatment under the TNLF standard, this evidence could be brought out into the open and considered within the TNLF analysis where it most belongs. Beyond this, there is little scope for further clarification which would be of much assistance to claimants and respondent states. This is because the weight given to the various indicators of nationality based discrimination can vary considerably from one case to the next. Claimants will sometimes win and sometimes lose when they have been treated less favourably than a single domestic comparator. Whatever the outcome, it can only result from consideration of all available reliable evidence as opposed to from a firm legal principle.
I fully support the idea of having treaty drafters write these obligations more clearly. Should national treatment be about best treatment, or about an overall finding of nationality-based discrimination? There are significant differences between the two. I prefer the latter, but I have no problem with a debate and discussion of the issue first, to see what everyone else thinks.
At the same time, I recognize that clarity might be a barrier to reaching agreement. The reason the vague language persists may be that people don't agree, and prefer to avoid making a decision, instead letting tribunals handle it later.
Arwel is updating this paper to take into account the Bilcon tribunal's findings.
