DEFINITION OF "LIKE SITUATIONS" ("LIKE CIRCUMSTANCES") IN ARBITRATION LEGAL CASES AND INTERNATIONAL INVESTMENT TREATIES OF VIETNAM

Dao Le MinhTrang

This study is devoted to the analysis of one of the key concepts in international investment law — the principle of non-discrimination in the form of national treatment and most favored nation treatment, which is provided to foreign investors in "like situations" ("like circumstances"). The present study demonstrates that the criterion of "like circumstances" objectively narrows the material scope of application of national and most-favored-nation standards in international investment agreements. Based on a comprehensive analysis of arbitration practice, a system of multifactor criteria for determining "similarity" has been formulated, including comparability of comparators, competitive overlap, and legitimacy of the regulatory objective. It is established that this system of criteria limits the discretion of arbitration courts, purposefully increases the threshold of proof for the investor and increases the predictability of decisions for recipient states.

Keywords:Foreign investment, Free Trade Agreement, bilateral agreements on investment protection and promotion, like situations, like circumstances, Most-Favored-Nation Standard, National Treatment.