Even though widely recognized as one of the core disciplines of international economic law, the interpretation of national treatment (“nt”) obligation has been long marked by legal indeterminacy. More recently, a series of landmark cases, including us—Clove Cigarettes, us—Tuna ii (Mexico), us—cool and ec—Seal Products, have fundamentally reshaped our collective understanding of the nt obligation in the gatt/wto system. The objective of this article is to take stock of what we have already known about the nt obligation in the wto law, identify the lingering uncertainties and discuss the options for the wto Appellate Body to bring more clarity to the nt obligation in future dispute settlements.
This paper sets forth three arguments in relation to the regulation of Chinese state-owned enterprises (soes) in national foreign investment laws. First, there is a broad convergence in national foreign investment laws on how to regulate Chinese soes when they make cross-border investments. Second, the nature and function of soes in China’s socialist market economy is still poorly understood. Consequently, the broad convergence in soe regulation in national foreign investment laws remains too crude a legal criterion in practice. Third, the complexity of Chinese soes in Chinese political and economic context calls for a more nuanced approach in their regulation in national foreign investment laws.