Abstract

This article offers a contribution to the broader project of isolating the causes of inconsistency in investor-state arbitral jurisprudence. It examines the norm of national treatment and explores the methodological tendency of arbitrators to draw on complex WTO jurisprudence as a means of guiding the application of a similar but not identical legal norm in the investment treaty setting. It argues that, when one unpacks the complicated arbitral jurisprudence on national treatment, misuse of WTO law is the controlling factor for critical inconsistency in the jurisprudence. The article ...