Non-Discrimination and the Role of Regulatory Purpose in International Trade and Investment Law

By Andrew D. Mitchell, David Heaton, & Caroline Henckels, Published by Edward Elgar, 2016

Non-discrimination requirements, such as MFN treatment and national treatment obligations, are central to both international trade law and international investment law. Significant inconsistencies between the fields are evident, however, in the way adjudicators have treated key elements of the test for discrimination. The authors survey and criticize the manner in which tribunals have employed the concept of regulatory purpose in determining whether discrimination has occurred, and propose a new definition of regulatory purpose that assists in framing the test for unlawful discrimination in both fields of law. The book compares and contrasts trade and investment law, drawing out several parallels and suggesting areas in which one legal system might answer or shed light on questions arising in the other. Available at