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논문 기본 정보

자료유형
학술저널
저자정보
艾素君 (上海大?法?院)
저널정보
원광대학교 법학연구소 원광법학 원광법학 제36권 제4호
발행연도
2020.1
수록면
243 - 270 (28page)

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In theory, Foreign investment in service sectors is regulated both by international investment law, especially BITs and FTAs, and International trade law, or more exactly GATS. But their corresponding provisions are not the same. In terms of national treatment, there exist textual discrepancies and different interpretation by trade and investment tribunals. National treatment in GATS applies to “like services and service suppliers” while investment treaties define national treatment as no less favorable treatment “in like circumstances”. When interpreting national treatment, GATT/WTO tribunals take a two-step approach which includes the determination of likeness and no less favorable treatment. The analysis of likeness is to determine whether products or services and service suppliers are in a competitive relationship with each other. The determination of no less favorable treatment demands a group analysis, focusing on whether the contested measures has a disproportionate effect on foreign products. Such analysis reflects the concern of trade law for market access and overall welfare. In contrast, arbitral tribunals disagree with each other on the determination of “like circumstance”. The analysis of no less favorable treatment is based on individual investor, holding that foreign investors are entitled to the most favorable treatment for domestic investors. Moreover, consideration of objective and purposes of contested measured is also permitted. With the development of economic integration, trade and investment are increasingly inseparable and the link between international trade law and investment law is growing stronger. In the context of reform of international investment regime, more and more international investment treaties incorporate such provisions as liberalization and general exceptions. The preamble of some treaties confirms that foreign investors enjoy equal competitive opportunity in domestic market. The inclusion of general exceptions will exert great influence on the jurisprudence of national treatment. At the same time, trade and investment tribunals begin to take similar approach in interpreting national treatment. The WTO appellate body in recent cases seems to open the door for consideration of objectives and purposes of governmental policy in the determination of “no less favorable treatment”, which is similar to practice of investment tribunals. Before the multilateral legislations respond to the potential conflicts between trade and investment law, the judicial dialogue and cross-fertilisation are a feasible way for harmonization of national treatment in the two regimes.

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