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International Legal Evangelism: Intelligence, Reconnaissance & Missions

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From 'Non-Discrimination' to 'Reasonableness': A Paradigm<br />

Shift in <strong>International</strong> Economic Law?<br />

Abstract<br />

Jean Monnet Working Paper No. 01/05<br />

Posted: 10 Aug 2006<br />

Federico Ortino<br />

King's College London – The Dickson Poon School of Law<br />

Date Written: April 2005<br />

Among the few basic legal instruments employed in international economic law for the<br />

promotion of trade and investment, the National Treatment (NT) principle and the<br />

reasonableness principle constitute the two predominant ones.<br />

While both<br />

norms deal<br />

principally<br />

with national<br />

measures of<br />

legislative,<br />

administrative<br />

or judicial<br />

nature taken<br />

to regulate<br />

the internal<br />

market, they<br />

appear to<br />

represent two<br />

quite different<br />

legal<br />

paradigms.<br />

By requiring<br />

each member<br />

to treat<br />

products and<br />

investors of the other member (at least) as well as it treats its own products and<br />

investors, the NT principle provides for a 'relative' standard of treatment. In other words,<br />

the NT principle does not guarantee a specific level of protection or that foreign<br />

products or investors will receive a 'fair' or 'reasonable' treatment. On the other hand,<br />

the reasonableness principle provides for an 'absolute' standard of treatment, in as far<br />

as it requires States to recognize to foreign products and investors a certain level of<br />

treatment independently of the treatment afforded to domestic products and investors.<br />

Although the concept of reasonableness may be given potentially a broad range of<br />

meanings, it usually refers to both substantive and procedural requirements, including<br />

concepts such as 'suitability', 'necessity', 'proportionality', 'transparency' and<br />

Page 73 of 119

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