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2. The Use and Abuse of WTO Law in Investor-State Arbitration: A Reply to Jürgen Kurtz
- Author:
- Robert Howse and Efraim Chalamish
- Publication Date:
- 11-2009
- Content Type:
- Journal Article
- Abstract:
- The challenge of coherence and consistency in jurisprudence has become a major concern for scholarship in international investment law. The assumption is that such consistency is necessary to increase predictability, reduce transaction costs, and maintain or enhance credibility and legitimacy. Several of the key norms in investment treaties are articulated as quite general standards of treatment, such as Fair and Equitable Treatment and National Treatment. This gives considerable scope to arbitral tribunals to define the contours of investor protection. But these tribunals operate in a decentralized system, without stare decisis or appellate review by a permanent judicial instance. When we turn to the law of the World Trade Organization (WTO) we see by contrast a jurisprudence that has evolved through appellate review premised on de facto (if not jure) vertical stare decisis. It is thus understandable that, where the norms seem similar, investor-state arbitral tribunals might turn to the WTO case law as a common acquis or common ground for the interpretation of investment treaties. Moreover, due to the important historical and conceptual links between investment treaties and trade jurisprudence, special attention should be given to the judicial dialogue created by the dependence of investor-state arbitral tribunals on WTO jurisprudence. Kurtz, who has contributed significantly to the understanding of this dialogue in investor-state tribunals' decisions, argues here that instead of using WTO case law as an anchor that promotes coherence and consistency in investment law jurisprudence,the arbitral tribunals, through their multiple misunderstandings of the WTO acquis, have actually produced greater incoherence and inconsistency in the case of the National Treatment standard.
3. Human Rights, International Economic Law and Constitutional Justice: A Reply
- Author:
- Robert Howse
- Publication Date:
- 11-2008
- Content Type:
- Journal Article
- Abstract:
- Together with developments in international criminal justice and humanitarian law, the human rights revolution in international law has had a profound structural effect on the international legal order as a whole; we are today only beginning to discern and to digest this effect, to say nothing of the broader consequences for global politics. New actors have been empowered in the international legal system (not only individuals but various kinds of non-state collectivities as well); conceptions of responsibility have been altered; classic notions, such as territorial sovereignty and recognition of statehood, have sometimes subtly and sometimes radically been reshaped or adapted; and the balance of institutional actors charged with interpreting and applying inter-national law has shifted towards courts and tribunals (a major theme of Petersmann) and away from diplomats and their ministers.
- Topic:
- Human Rights, Sovereignty, and International Affairs