Non-discrimination requirements, such as most-favored nation 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. This book surveys and criticizes the manner in which tribunals have employed the concept of regulatory purpose in determining whether discrimination has occurred. The authors of this book propose a new definition of regulatory purpose that assists in framing the test for unlawful discrimination in both fields of law. It provides a systematic and structured analysis of how regulatory purpose should - and should not - be used in applying non-discrimination norms. Throughout, 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. With its comprehensive and up-to-date analysis of trade and investment jurisprudence, this book will appeal to practitioners and academics in the fields of trade and investment law. Lawyers and adjudicators will find it a useful source of ideas and proposals to inform their arguments and decisions. For government officials, it will be informative when considering the optimal way to structure measures that may affect the interests of foreign traders or investors. It will also provide a useful survey of the literature for academics, as well as a springboard for further comparison of international trade and investment law.

In this study, Caroline Henckels examines how investment tribunals have balanced the competing interests of host states and foreign investors in determining state liability in disputes concerning the exercise of public power. Analyzing the concepts of proportionality and deference in investment tribunals' decision-making in comparative perspective, the book proposes a new methodology for investment tribunals to adopt in regulatory disputes, which combines proportionality analysis with an institutionally sensitive approach to the standard of review. Henckels argues that adopting a modified form of proportionality analysis would provide a means for tribunals to decide cases in a more consistent and coherent manner leading to greater certainty for both states and investors, and that affording due deference to host states in the determination of liability would address the concern that the decisions of investment tribunals unjustifiably impact on the regulatory autonomy of states.

In this study, Caroline Henckels examines how investment tribunals have balanced the competing interests of host states and foreign investors in determining state liability in disputes concerning the exercise of public power. Analyzing the concepts of proportionality and deference in investment tribunals' decision-making in comparative perspective, the book proposes a new methodology for investment tribunals to adopt in regulatory disputes, which combines proportionality analysis with an institutionally sensitive approach to the standard of review. Henckels argues that adopting a modified form of proportionality analysis would provide a means for tribunals to decide cases in a more consistent and coherent manner leading to greater certainty for both states and investors, and that affording due deference to host states in the determination of liability would address the concern that the decisions of investment tribunals unjustifiably impact on the regulatory autonomy of states.