5 Relative Treatment Standards: National Treatment and Most-Favoured-Nation

Subject(s):

Intellectual property — Investor — Most-favoured-nation treatment (MFN) — Fair and equitable treatment standard — National treatment — Non-discrimination

This chapter discusses the relative standards of treatment that protect investors against discrimination, namely national treatment and most-favoured-nation (MFN)—the only standards which exists by and large as equivalent principles in international intellectual property (IP) and investment law. It provides a comparative review of the non-discrimination principles in international trade, investment, and IP law, and looks at the national treatment provisions in the Paris and Berne Conventions, as well as the TRIPS Agreement. The TRIPS Agreement also includes an MFN clause and a patent-specific non-discrimination rule. The chapter then studies how the core elements of a national treatment (and MFN) claim under an international investment agreement (IIA) apply to IP rights as protected investment, focusing on scope, comparability, the standard of treatment owed, and possible defences and justifications. An important part of this discussion forms the careful review of the potential role for the parallel standards in IP treaties, and IIA clauses that import specific exceptions from the non-discrimination principles in, for example, TRIPS into the IIA.