The National Treatment Standard ensures that foreign investors or their investments will be treated no less favorably than domestic investors or their investments.

Depending on the wording of the clause incorporated in the BIT containing it, the application of the National Treatment standard can vary significantly. Violations of the National Treatment standard are often alleged by claimants involved in investment arbitrations.

Does the clause cover all types of sectors in which an investment has been made? Is National Treatment provision applies to all types of investments? The application of National Treatment for strategic industries or economic sectors is frequently excluded by Host States of investment. With respect to the conditions under which a foreign investment can be made, a number of BIT’s grant host States a margin of discretion.

The National Treatment standard usually applies only to investments and investors “in like circumstances.” Various arbitral tribunals have had the mission of extracting criteria to determine “like circumstances.” when determining the applicability of the National Treatment standard. The competitive relationship between companies is not the only criteria to take into consideration.

Two types of governmental measures by The National Treatment Standard:

• Measures that are de facto discriminatory

Measures that are discriminate against foreign investors or investments but are not discriminatory at first glance qualifies for BIT protection.

• Measures those are de jure discriminatory

A law promulgated by a government that explicitly grants benefits to domestic investors or investments; such a measure could be a law promulgated by a government that explicitly grants benefits or subsidies only to local investors or investments.

To learn more about arbitration, you can contact Aceris Law’s France Arbitration Lawyers Desk. They are a dedicated team of lawyers at Aceris Law, a specialized international arbitration law firm, which accompanies clients involved in arbitrations concerning France, i.e., where French law applies, a contract is executed in France, the dispute is brought by or against a party in France, or the French State or a French State entity is involved.

Aceris Law’s avocat arbitrage (arbitration lawyers in French) has access to all French jurisprudence and doctrine, while speaking French and English, which are languages commonly used in disputes concerning France.

For more information, visit https://www.acerislaw.com.