A Study on Matters to be Attended when Drafting National Treatment Clause in International Investment Treaty

투자협정상 "내국민대우(National Treatment)" 조항 작성시 유의사항에 관한 연구

Clauses on national treatment in the bilateral investment treaties including FTA state that, the foreign investor and his investments are 'accorded treatment no less favourable than that which the host state accords to its own investors'. Hence the purpose of the clause is to oblige a host state to make no negative differentiation between foreign and national investors when enacting and applying its rules and regulations and thus to promote the position of the foreign investor to the level accorded to nationals. As a matter of legal drafting technique, while the basic clause is generally the same, the practical implications differ due to more or less wide-ranging exemptions of certain business sectors. It is generally agreed that the application of the clause is fact-specific. This paper deals with problems in drafting clauses on national treatment in practice, introduces several considerations to adjust the level of national treatment, so it can be made more represents the interest of our country.