GATT/WTO 협정상 내국민대우 원칙과 투자협정상 내국민대우 원칙 = Graduate School Student Thesis : An Analysis of National Treatment in Investment Treaties and in GATT/WTO

다국어 초록 (Multilingual Abstract)

What many foreign investors are highly concerned about is the risks of being given less favorable treatment than national investors of host state. Mindful of this concern, therefore, most international investment agreements (IIA) stipulate National Treatment Clause under which member states shall not give less favorable treatment to foreign investors or investments in like situations(or circumstances) than domestic investors or investments. Stipulated in the GATT Art. III, National Treatment constitutes one of the core non-discrimination principle along with Most-Favored-Nation Treatment and has coherent and consistent jurisprudence cumulated by Panel and Appellate Body reports. On the contrary, lack of coherent national treatment jurisprudence in IIA is likely to lead to investment disputes between foreign investors and host state. Therefore, a study on GATT/WTO Panel and Appellate Body reports and practices relating to national treatment disputes will help to prevent possible disputes concerning national treatment between foreign investors and host state. True, IIAs are quite different from international trade agreements in many respects including their wordings, subjects and application. In order to examine whether the host state violates national treatment clause in investment treaty, above all, it is necessary to identify whether domestic investors/investments and foreign investors/investments concerned are situated in `like circumstances.` Second, the existence of less favorable treatment should be established by the claimant. Third, if there are legitimate non-protectionist rationales, the host state should justify differences in treatment. First, in examining like circumstances, many IIA tribunals have frequently relied on the element of `the same business or economic sector`. However, the tribunals have taken inconsistent approaches in determining the appropriate comparator for the purposes of the national treatment analysis. Some national treatment cases generally illustrates a tendency to narrowly define the comparator (i.e. in Methanex case, the tribunal like in all relevant aspects), while other tribunals compares investments in very different economic sectors that are not in a competitive relationship. Second, when it comes to the analysis of less favorable treatment, most tribunals state that both de jure and de facto discrimination are prohibited. Moreover, it is said that proof of protectionist or discriminatory intent is neither a necessary nor a sufficient condition for a finding that there has been a breach of national treatment. The analysis focuses on the objective effect of the treatment in question. Third, an assessment of the host state`s legitimate policy rationale is relevant to the first step of analysis in determining like circumstances and the third step in assessing whether it is possible to justify the host state`s different treatment between foreign and domestic investors/investments. Considering host state`s regulatory purpose of treatment in the first step in determining like circumstances, which is mostly rejected by many IIA tribunals, is similar to Aim-and-Effect approach in assessing `likeness` of domestic and imported goods under GATT Art. III. Given differences in texts, wording, objects and purposes of GATT and IIAs, it is clear that GATT jurisprudnece should not be uncritically transported into international investment law. In several IIA national treatment cases, however, claimants have relied on Article III, GATT, national treatment and like products jurisprudence to support arguments that investments are in like circumstances. The possibility cannot be excluded completely that there might be cases where `like product` test is one of the important factors to consider in determining `like circumstances`. In that case, GATT national treatment jurisprudence might be useful for a tribunal in assessing whether the goods produced by foreign and domestic investors are `like.` In this respect, GATT national treatment jurisprudence serve as a useful legal guidance for a tribunal to interpret national treatment provision in investment treaty at least when it is relevant.