Developing states' long walk to freedom: An examination of the principle of non-discrimination, substantive equality and proportionality in Investor-State disputes

The principle of non-discrimination is widely subscribed to in both Bilateral Investment Treaties and Investor-State arbitration awards. However, when this principle is deconstructed, it appears to be less evident what it entails and accordingly, how it should be applied in practice. This thesis examines how discriminatory treatment is defined under international investment law and seeks to articulate a more coherent test based upon the substantive standard of equality and the proportionality principle. By examining a current Investor-State dispute against the Government of South Africa, it illustrates why it is important to understand the notion of equality, and that investment arbitrations are increasingly raising questions of the conflict between domestic public policy and investment protection for arbitrators to resolve. Underlying this issue are wider questions relating to the fundamental power balances between the parties to Bilateral Investment Treaties. In order to encourage international investment as a whole, these questions should not be ignored but rather addressed by arbitral tribunals.