A Clash of Treaties: The Lawfulness of Countermeasures in International Trade Law and International Investment Law

Trade Law ◽

International Trade Law ◽

Investment Law ◽

Set Up ◽

Trade And Investment

Countermeasures are part of customary international law and have been incorporated into the WTO as a mechanism to facilitate compliance. In the NAFTA sugar disputes, Mexico claimed that the measure in dispute was a countermeasure against a breach of NAFTA by the United States. Three US investors also claimed against Mexico under the investment chapter of NAFTA. All three ICSID tribunals held, for different reasons, that trade countermeasures affecting investor rights would be unlawful. Some of the tribunals’ reasoning that investors have direct rights could set up a clash between the trade and investment regimes. We argue that an authorized trade countermeasure should also be lawful in the investment law context. Coherence between the trade and investment regimes is essential in this age of global value chains in which investors are part of a complex trade network. We suggest ways to improve the jurisprudence and existing investment treaties.

23. International Investment Law

International Law ◽

10.1093/he/9780198791836.003.0023 ◽

2018 ◽

Author(s):

Surya P Subedi

Keyword(s):

International Trade ◽

International Law ◽

International Regulation ◽

Trade Law ◽

International Trade Law ◽

Finance Law ◽

Recent Trends ◽

This chapter discusses the development and current state of international investment law, which encompasses international finance law, international trade law, international investment law, and regional economic trade agreements. Recent progressions in the area of international financial law, international trade law, and investment law demonstrate that other areas of international regulation have a decisive influence on international investment law. Moreover, international investment law is more increasingly focused on development concerns. International investment law is currently going through an exciting phase in its development. It has now become one of the fastest changing areas of international law with exciting and far-reaching implications for both investment-receiving and investment-exporting countries, thanks to enterprising claimants and innovative interpretations and expansive approaches adopted by international investment tribunals. This chapter seeks to capture the law and the recent trends in both State practice and jurisprudence in this area of international law.

Consolidating International Investment Law: The Mega-Regionals as a Pathway towards Multilateral Rules

World Trade Review ◽

10.1017/s147474561700009x ◽

2017 ◽

Vol 17 (1) ◽

pp. 33-63 ◽

Cited By ~ 4

Author(s):

TANIA VOON

Keyword(s):

International Trade ◽

United Nations ◽

Trade Law ◽

International Trade Law ◽

The World ◽

Investment Law ◽

The United Nations ◽

Trade And Investment

AbstractPessimism abounds in international economic law. The World Trade Organization (WTO) faces an uncertain future following its Ministerial Conference in Nairobi in 2015. International investment law is under attack in countries around the world, while mega-regional agreements such as the Trans-Pacific Partnership and the Trans-Atlantic Trade and Investment Partnership are beset by world events, from the United States’ federal election to the unexpected Brexit outcome. Yet the appetite of numerous States to continue forging plurilateral trade and investment deals provides some cause for hope. Viewed alongside other institutional developments including consensus-building work at the United Nations Conference on Trade and Development and the United Nations Commission on International Trade Law, the potential arguably now exists for credible movement towards multilateral rules in investment law. While the WTO's current negotiating stalemate highlights the difficulties in reaching agreement among 164 Members, international trade law offers lessons for working towards multilateralism in the international investment law field. Alongside informal discussions about a world investment court, mega-regionals provide a vehicle for future multilateral investment rules, particularly through the Comprehensive Economic and Trade Agreement between Canada and the European Union, and the Regional Comprehensive Economic Partnership currently under negotiation in Asia.

Veiled Power

10.1093/oso/9780198822097.001.0001 ◽

2020 ◽

Author(s):

Doreen Lustig

Keyword(s):

International Law ◽

Historical Study ◽

Sovereign State ◽

Business Corporation ◽

Trade Law ◽

International Trade Law ◽

History Of ◽

This book presents a historical study of the international law of the private business corporation. The literature on corporations and international law typically concentrates on the failure to regulate corporations. This book challenges this ‘failure’ narrative and presents an alternative historical reading: a history of its facilitative role in constituting an economic order. This study draws inspiration from scholarship on the history of international trade law, international investment law, the history of global governance, and political economic analysis of international law, and connects these specialized fields in a single lens: the corporate form. The point of departure for this history is the simultaneous emergence of international law as a modern legal discipline and the turn to free incorporation in corporate law during the last third of the nineteenth century. The book demonstrates how the sovereign veil of the state and the corporate veil of the company were applied in tandem to insulate corporations from responsibility. Nevertheless, less powerful states invoked the same prevailing conceptions of the corporation, the sovereign state, and the relation between them, to curtail corporate power in struggles associated with decolonization. Reacting to these early victories, capital exporting countries shifted to a vocabulary of human rights and protected companies under a new regime of international investment law, which entrenched the separation between market and politics.

Investment law’s Roots in Customary International law

10.1093/law-iic/9780198809722.016.0006 ◽

2017 ◽

Author(s):

XU Shu ◽

WU Yingying ◽

JIA Henry Hailong

Keyword(s):

International Law ◽

Deep Roots ◽

Investment Protection ◽

Trade Law ◽

Investment Law ◽

The One ◽

The Right

The existing regimes of international investment law and trade law both face a prominent issue, namely, the balance between investment protection/trade liberalization on the one hand and the right of host states/importing countries to regulate for non-economic purposes on the other hand. However, investment law has taken an approach that is different from that of trade law in dealing with the issue. In addressing the balancing issue, this chapter finds investment law has deep roots in customary international law and argues that the roots of investment law in customary international law can partially explain why investment law is kept apart from trade law in this context.

The Formation and Identification of Rules of Customary International Law in International Investment Law

10.1017/cbo9781316481479 ◽

2016 ◽

Cited By ~ 4

Author(s):

Patrick Dumberry

Keyword(s):

International Law ◽

On Inter-Disciplinary and Inter-Systemic Approaches to International Investment Law

The Journal of World Investment & Trade ◽

10.1163/22119000-01603007 ◽

2015 ◽

pp. 557-572 ◽

Cited By ~ 1

Author(s):

Jürgen Kurtz

Keyword(s):

State Regulation ◽

Expiry Date ◽

Secondary Literature ◽

Trade Law ◽

International Trade Law ◽

Law And Policy ◽

State Practice ◽

This review essay identifies two fundamental flaws in much of the secondary literature examining international investment law. The first is a clear attention to disciplines other than law in identifying and understanding the justifications for constraints on state regulation vis-à-vis foreign investment. Secondly, there are stubborn vestiges of self-containment among a sizeable set of legal commentators in this field. This typically reaches its apotheosis in instinctive and hostile opposition to usage of lessons and techniques employed in international trade law. Measured against the direction and nature of contemporary state practice, this type of older commentary is rapidly approaching an overdue expiry date. Prospects in International Investment Law and Policy marks a welcome and significant break from these flawed pathologies. Many of the contributions will shape the contours of innovative and important scholarship in this field. It is a collection that merits careful and repeated consideration.

International Investment Law for Foreign Investors: Part 3 Customary International Law a Primer for International Investors

SSRN Electronic Journal ◽

10.2139/ssrn.3161826 ◽

2018 ◽

Author(s):

Alan Franklin

Keyword(s):

International Law ◽

Foreign Investors ◽

Investment Law ◽

International Investors

3 The Foundations of International Investment Law

10.1093/law/9780198703976.003.0003 ◽

2015 ◽

Cited By ~ 2

Author(s):

Salacuse Jeswald W

Keyword(s):

World War Ii ◽

International Law ◽

World War ◽

International Investments ◽

Enforcement Mechanism ◽

General Principles Of Law ◽

This chapter examines the state of customary international law governing international investments, that is, the law that exists in the absence of an applicable treaty. Following World War II, such law for most investors was incomplete, vague, contested, and without an effective enforcement mechanism, meaning that investors and their home governments needed to find another way to protect investments of their nationals. This would lie in negotiating investment treaties. Topics covered include state and investor interests shaping international investment law; the sources of international law; customary international law and general principles of law governing international investment; customary international law on expropriation and breach of state contracts; challenges to Western views on international investment law; and deficiencies of customary international law on investment.

Zeitschrift für ausländisches öffentliches Recht und Völkerrecht / Heidelberg Journal of International Law ◽

Moral Damages as an ‘Exceptional’ Remedy in International Investment Law – Re-Connecting Practice with General International Law

10.17104/0044-2348-2021-4-937 ◽

2021 ◽

Vol 81 (4) ◽

pp. 937-968

Author(s):

Robert Christoph Stendel

Keyword(s):

International Law ◽

State Responsibility ◽

Investment Law ◽

The Individual ◽

Inter State

Moral damages under international investment law have been extensively addressed in the literature. Notoriously, arbitral tribunals have subjected any claim for moral damages to a requirement unknown to general international law, that is exceptional circumstances. This practice is widely criticised in the field mainly due to the seeming inconsistency with general international law. This article challenges this view by arguing that a deviation from general international law does not – in and of itself – suffice to discard the tribunals’ approach. This argument is based on the insight that general international law only deals with inter-State responsibility and is, thus, open to deviations from general international law in case of State responsibility vis-à-vis the individual. On that basis, the article explores possible legal bases for exceptional circumstances in international law. While it discards the idea that such a requirement for awarding moral damages is implicit in prior inter-State cases, the article rather argues that the arbitral practice witnesses the emergence of a new rule of customary international law applicable to the responsibility of a State vis-à-vis the individual. Thereby, the article seeks to contribute to the wider debate on the content and contours of State responsibility for claims of the individual.

International economic law and the quest for universality

Leiden Journal of International Law ◽

10.1017/s0922156519000220 ◽

2019 ◽

Vol 32 (3) ◽

pp. 401-414 ◽

Cited By ~ 1

Author(s):

Laurence Boisson de Chazournes

Keyword(s):

International Economic ◽

International Law ◽

Final Analysis ◽

Economic Law ◽

Trade Law ◽

International Trade Law ◽

International Economic Law ◽

Investment Law ◽

Enabling Clause ◽

Trade And Investment

AbstractThe quest for universality in international economic law has met many obstacles. This article begins from the proposition that there are various ways to conceive of universality in international law, for example whether the rules are accepted widely among states (omnipresence) or whether they are broadly coherent (generality). Homing in on trade and investment law, the article assesses how each of these areas has functioned as a testing ground for these different conceptions. An in-built quasi-universality characterizes international trade law with the WTO as a seemingly centralized universal institution. Such universality, however, has often been achieved through differentiation of rights and obligations (e.g., the Enabling Clause and regional trade agreements). In investment law, attempts at universalization through the construction of centralized institutions have failed. Nevertheless, certain common standards have emerged in this fragmented regime. There is also a debate around the use of the MFN clause as a universalizing tool and renewed efforts to universalize investment law are afoot. More generally, it is clear that there is little appetite for codification of international economic law, and that states wish to control its content through the conclusion of treaties. In the final analysis, this article asks whether it is time to conceive of universality differently, and particularly whether equity and collective preferences should be a more central part of the quest.