ike circumstances, to its own investors with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of investments. [emphasis added]1With respect to a claim based on National Treatment guarantees, it is possible in our view to craft Canadian measures that are more likely to meet the requirements of this provision. In simple terms this would require drafting water export controls measures in a manner that treated US and Canadian investors in the same way, i.e., by denying both water export licenses. With respect to water export controls, the success of this strategy will turn upon a tribunal’s interpretation of the phrase "treatment no less favourable than it accords, in like circumstances, to its investors" to mean a comparison of the treatment accorded US and Canadian investors respectively, who are seeking bulk water export licenses or water diversion approvals. Thus a measure that denied such approvals or licenses to both US and Canadian alike would be deemed consistent with Article 1102 requirements. However, we believe that it is also possible that a panel would choose, for the sake of this comparison, a domestic investor seeking a license for purposes other than export. Thus a company such as Sunbelt Water Inc., seeking a license to provide water services to municipal consumers in California, might be considered an investor "in like circumstances" with a Canadian, Mexican or US company seeking the same access for the purposes of supplying municipal consumers in British Columbia. Thus a tribunal might adopt an interpretation of "in like circumstances" to reference the character of the access rights being sought, either with respect to volume or purpose (agricultural, industrial, municipal service, etc.), rather than the nationality or location of the intended beneficiaries of the investment. To return to a point we emphasized in the introduction to this opinion, the...
