The “likeness” test denotes that the allegedly discriminatory measures (in the context of national or most favoured nation treatment, arbitrary and/or discriminatory treatment, fair and equitable treatment and expropriation) adopted vis-à-vis a foreign investor or investment should be compared with those adopted towards a similarly situated national or foreign investor or investment (i.e. a comparator).5
Investors bear the burden of establishing that their investments are “in like circumstances” with the identified comparator(s).8 Some tribunals have held that once the investor establishes an appropriate comparator on a prima facie basis, the burden of proof may shift to the respondent to rebut the evidence.9
Some considered that a proper comparator is limited to investors or investments operating in the same business or economic sector.10 To this extent, in assessing “likeness”, tribunals take into account various factors including the competitive relationship between the claimant and the identified domestic or foreign comparator11 (including the possible substitutability of the investors’ products),12 the legal and factual circumstances of the investor or investment,13 and considerations of public policy/interest.14
In particular, tribunals have refused to qualify the circumstances as similar where:
Case law is divided on the relevance of WTO case law. While some tribunals rejected the relevance of the test of “like products” as set out in Articles I and III of the General Agreement on Tariffs and Trade (GATT) for the determination of what constitutes “like circumstances” in the context of investment treaties,22 others have used this test as interpretive guidance, while, at the same time, acknowledging the autonomous and distinct nature of the “likeness” test as understood under investment treaties.23
Dolzer, R. and Schreuer, C., Principles of International Investment Law, 2nd ed., 2012.
Newcombe, A. and Paradell, L., Law and Practice of Investment Treaties: Standards of Treatment, 2009.
Ortino, F., The Impact of Amicus Curiae Briefs in the Settlement of Trade and Investment Disputes, in Meessen, K.M. (ed.), Economic Law as an Economic Good: Its Rule Function and its Tool Function in the Competition of Systems, 2009, pp. 301-316.
Ziegler, A.R. and Gratton, L.P., Standards of Treatment, in Muchlinski, P.T., Ortino, F. and Schreuer, C. (eds.), The Oxford Handbook of International Investment Law, 2008, pp. 259-303.
Baetens, F., Discrimination on the Basis of Nationality: Determining Likeness in Human Rights and Investment Law, in Schill, S.W. (ed.), International Investment Law and Comparative Public Law, 2010, pp. 279-315.
Kurtz, J., The Merits and Limits of Comparativism: National Treatment in International Investment Law and the WTO, in Schill, S.W. (ed.), International Investment Law and Comparative Public Law, 2010, pp. 243-278.
Ortino, F., Non-Discriminatory Treatment in Investment Disputes, in Dupuy, P.M. and Others (eds.), Human Rights in International Investment Law and Arbitration, 2009, pp. 344-366.
Sesin, A., The Standard of National Treatment in the Investor-State Dispute Settlement Practice, Cambridge International Law Journal, 2017.
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