Non-Discrimination in International Investment Law

This chapter provides a comprehensive examination of the principle of non-discrimination in international investment law, with particular emphasis on the national treatment (NT) and most-favoured-nation (MFN) standards and their application to Caribbean states. The chapter explores the contested interpretative approaches tribunals have adopted regarding key concepts such as ‘like circumstances’ and ‘less favourable treatment’ under national treatment provisions, while demonstrating how inconsistent jurisprudential methodologies create regulatory uncertainty for host states. The chapter also critically examines the highly controversial procedural use of MFN clauses to import more favourable dispute settlement mechanisms, highlighting the jurisprudential schism between the liberal Maffezini line of cases and the restrictive Plama approach. It argues that this uncertainty particularly disadvantages Caribbean states by transforming carefully negotiated arbitration provisions into unpredictable investor-selected options through treaty shopping.