Abstract
Why, how and what for are States sued for breaches of their International trade and investment law obligations? At a time when multilateralism is deeply questioned by the forces of mega-regionalism as well as political and economic contestation, these essential interrogations have never been more pressing. Whether by a permanent court or an ad hoc body, the questioning of judging the State for breaches of its treaty obligations however remains at the core of today’s interrogations on the adequacy and legitimacy of trade and Investor States Dispute Settlement System. While rich and diverse in the way it addresses some fundamental issues in international trade and investment dispute settlement, our book does not claim to be exhaustive. Its analysis is voluntarily limited to trade and investment disputes settled at the international level by the World Trade Organisation (WTO) dispute settlement mechanism and international investor States disputes systems. But in this relatively restricted context, Judging the State in International Trade and Investment Law takes into account the latest evolutions of a globalized trade and investment regulation struggling to put people’s expectations at its core, and provides a comprehensive framework and truly original perspective linking the various facets of “judicial activity” to the specific yet encompassing character of international law and the rule of law in international society.
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- 1.
See, UNCTAD World Investment Report 2016.
- 2.
The (scrubbing) as presented by the EU and Canada refers to a de facto renegotiation of the first treaty text produced in 2014. See, http://trade.ec.europa.eu/doclib/press/index.cfm?id=1468.
- 3.
See, UNCTAD World Investment Report 2016. Calculations are based on the 1987–2015 period.
- 4.
Ibid, 105.
- 5.
See, for quite critical study, P Eberhardt & C Olivet, Profiting from Injustice, How Law Firms, Arbitrators and Financiers Are Fuelling and Investment Arbitration Boom, Corporate Europe Observatory and the Transnational Institute, November 2012.
- 6.
See, DS406, United States – Measures Affecting the Production and Sale of Clove Cigarettes; DS434, Australia – Certain Measures Concerning Trademarks and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging and DS400, DS401: European Communities – Measures Prohibiting the Importation and Marketing of Seal Products, in which the Appellate Body upheld the Panel's finding that the EU Seal Regime is “necessary to protect public morals” within the meaning of Article XX(a) of the GATT 1994 while concluding that the European Union had not justified the EU Seal Regime under Article XX of the GATT 1994.
- 7.
Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention or the Convention) entered into force on 14 October 1966.
- 8.
Ecuador in Occidental Petroleum Corporation v Ecuador, ICSID Case No ARB/06/11 award 5 October 2012. It has been reported that this is the largest sum ever awarded by a tribunal under the ICSID Convention and, unsurprisingly, has been challenged by Ecuador. This controversial dispute arose out of Ecuador’s April 2006 decision to terminate, by way of a decree the Participation Contract under which Occidental Petroleum Corporation (Occidental) and Occidental Exploration and Production Company (OPEC, the Claimants, were exploiting oil in the Oriente Basin in the Ecuadorian Rainforest (the same region where the Chevron- Texaco case took place). While the three arbitrators of the tribunal were unanimous on the liability of Ecuador (breach of the contract and violation of the US-BIT in acting disproportionate manner), Professor Brigitte Stern firmly and brilliantly dissented upon the calculation of damages. She indeed argues that the Claimant himself contributed to the damage causing the contract termination by Ecuador.
- 9.
- 10.
See, The Hindu available at: http://www.thehindu.com/news/national/indiaus-investment-protection-pact-in-the-offing/article7444730.ece?homepage=true.
- 11.
Some of these cases are identifiable on the Investment Treaty Arbitration website available at: http://www.italaw.com.
- 12.
We will further develop the White Industries case’s impact on the Most Favoured Nation (MFN) standard of treatment below. The White Industries case Final Award is available at: http://www.italaw.com/sites/default/files/case-documents/ita0906.pdf.
- 13.
See, UNCTAD World Investment Report 2016.
- 14.
See, Mary Ellen O’Connelll & Lenore Vanderzee, The History of International Adjudication, in, Cesare Pr Romano, Karen J Alter & Yuval Shany (eds) The Oxford Handbook of International Adjudication, Oxford (OUP), December 2013, 40–62.
- 15.
See, Sir Hersch Lauterpacht, The Function of Law in International Community Oxford (OUP, 2012) 477.
- 16.
See, ibid, The Doctrine of Limitations of the Judicial Process in International Law, 1–25.
- 17.
See, Leïla Choukroune, Human Rights in International Investment Disputes: Global Litigation as International Law Re-unifier (Chap. 9) (Springer 2016).
- 18.
See, DS394/DS395/DS398: China – Measures related to the exportation of various raw materials and DS431/DS432/DS433: China – Measures related to the exportation of rare earths, tungsten, and molybdenum.
- 19.
Ibid, 19.
- 20.
On the role of judges, see, José Alvarez, What Are International Judges for? The Main Functions of the International Adjudication, in, Cesare Pr Romano, Karen J Alter & Yuval Shany (eds) The Oxford Handbook of International Adjudication, Oxford (OUP), December 2013 158–178.
- 21.
See, Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law (1870–1960) Cambridge, Cambridge University Press (CUP, 2001) 584.
- 22.
On proliferation, see, Pierre-Marie Dupuy & Jorge E Vinalaes, The Challenge of Proliferation: An Anatomy of the Debate, in, Cesare Pr Romano, Karen J Alter & Yuval Shany (eds) The Oxford Handbook of International Adjudication, Oxford (OUP), December 2013 135–157.
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Choukroune, L. (2016). Introduction. In: Choukroune, L. (eds) Judging the State in International Trade and Investment Law. International Law and the Global South. Springer, Singapore. https://doi.org/10.1007/978-981-10-2360-6_1
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