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Panel 6A: International Trade Law and International Investment Law: Boundaries, Consistency, and Conflicts

Séance 6A: Droit commercial international et droit international des investissements : frontières, cohérence et conflits

November 16, 2014

Chair/Président:
Debra Steger 

University of Ottawa Faculty of Law

 
Speakers/Conférencier(e)s:

José Alvarez

New York University School of Law

 

Andrew Mitchell

Melbourne Law School

 

Rapporteur:

Natalie Fong

2017 JD Candidate

 

Professor Steger introduced this panel by discussing whether international trade law and international investment law are “twins or siblings.” A major question is whether fragmentation within and between the two regimes should be addressed by dispute settlement/arbitration or by negotiation. Some scholars have argued that dispute settlement can promote convergence between the two legal systems. This is apparent when we look at the trend toward investment chapters in PTAs, which often have right of establishment, market access, performance requirement and Article XX-type language in them. The policy goals of investment and trade treaties are similar: to promote and guarantee economic opportunities to businesses, investors and stakeholders. If we are to focus on the rules or obligations, then discussing “convergence” between the regimes may be premature. Moreover, it is the role of the government rather than arbitrators or adjudicators to negotiate and transform policy goals into legal obligations in treaties. 

 

Professor Alvarez viewed the two regimes as “siblings” rather than “twins” as they have a common parent - FCN treaties. With the evolution of BITs, there is an increased susceptibility and sensitivity to including greater policy space in them. There is a risk of getting both trade and investment law wrong if we rely primarily on arbitrators for convergence of the two regimes. Worries about fragmentation and inconsistency are justified. But we should view the convergence as a notion of horizontal and vertical “boundary crossing” rather than a “trespass.” There are, nonetheless, risks in “boundary crossing”—states risk being sued in human rights tribunals and bearing litigation costs in investor-state dispute settlements.

 

The two regimes have different purposes: the trade law regime is focused on eliminating trade protection measures by the state and the other protects against discrimination and highlights property protection. It is important to look at states’ intentions in a bilateral treaty but note that they are subject to rules and subsequent agreements. There is a need to move away from a rigid standard of proof approach to a more progressive approach. 

 

Professor Mitchell addressed three main issues between international trade law and international investment law. First, the interpretative implications of including obligations in both trade and investment law in the same treaty. Second, applying WTO-style general exceptions to investment obligations still require that modern agreements cover good services and investments in a broader context to reflect the reality of contemporary international commerce. Third, concerns about parallel trade and investment disputes and the overlapping nature of the two regimes. 

 

There are potential disagreements of provisions in investment and trade agreements. Interpreters of law of treaties might understand the terms differently based on their backgrounds. Disagreements may also arise in the terms of provisions and relevant factual circumstances. Some agreements use Article XX of the GATT to establish more balance of rights and provisions and may be inconsistent due to a lack of provision in the agreement. Also, parallel claims between WTO and investment treaty regimes could create conflicting outcomes. World trade investment law is motivated by economic concerns to protect international commerce. Parallel disputes only demonstrate an overlap of two regimes rather than a problem with fragmentation. Finally, we must carefully consider the relevant purposes of the two regimes, review the contexts and circumstances and pursue goals of increased regulatory regimes.