Author: Anastasios Gourgourinis

Book Symposium Investment Law: A Reply to van Aaken

[Dr Anastasios Gourgourinis is Lecturer in Public International Law at the National and Kapodistrian University of Athens Faculty of Law, and Research Fellow at the Academy of Athens] I am very grateful to Anne van Aaken for her challenging and insightful comments on my chapter “Reviewing the administration of domestic regulation in WTO and investment law: the international minimum standard as 'one standard to rule them all'?”, as well as for providing me the opportunity to further expand and explain my argument. She essentially poses two questions: whether the simultaneous qualification of traders as investors and vice versa, is feasible; and whether the arbitral interpretations of the fair and equitable treatment standard (FET) contained in international investment agreements (IIAs) reconfigure the content of the customary minimum standard of treatment of aliens (MST).  Based on the above, van Aaken questions my conclusion that, under the influence of MST  permeating the trade and investment disciplines, the same set of facts regarding the administration of domestic regulation may indeed give rise to successful challenges brought before either the WTO dispute settlement body or investment arbitration tribunals. I will hence attempt to address these concerns.

Traders qua investors and vice versa

From the outset, I must note that the chapter’s analysis was founded upon (rather than intending to scrutinize and put to the test) the working hypothesis that foreign traders may qualify as foreign investors under IIAs, and vice versa. In other words, this constituted a scenario which is plainly feasible, rather than omnipresent, in so far as the realities of international trade and investment are concerned. Anne van Aaken, on the one hand, suggests taking a functional view, based on economic and management theory, so as to further explain and expand on this proposition, and rightly so: I do agree that there is much more to be written in this respect, deserving special treatment in a separate study where multidisciplinary perspectives may indeed contribute significantly. On the other, van Aaken cautions about the normative aspects of my hypothesis, i.e. whether foreign traders may, in principle, qualify as investors under IIAs, especially in view of the very recent Apotex v. USA Award on Jurisdiction and Admissibility  under Chapter Eleven of the North American Free Trade Agreement (NAFTA). This is where we disagree, for a number of reasons.

Book Symposium Investment Law: The International Minimum Standard of Treatment of Aliens and Administration of Domestic Regulation under WTO and Investment Protection Law

[Dr Anastasios Gourgourinis is Lecturer in Public International Law at the National and Kapodistrian University of Athens Faculty of Law, and Research Fellow at the Academy of Athens] Let me start by extending a warm thanks to Freya Baetens for her overall care, diligence and patience as the editor of Investment Law within International Law: Integrationist Perspectives, the publication of which is very timely and indeed. I am also grateful to Opinio Juris for hosting this Book Symposium, as well as to Anne van Aaken, who I am privileged to have as commentator of my chapter entitled “Reviewing the administration of domestic regulation in WTO and investment law: the international minimum standard as 'one standard to rule them all'?”. In this post, I briefly summarize the chapter’s key points. The interaction between the legal standards established under the World Trade Organization (WTO) agreements and international investment agreements (IIAs) has steadily and increasingly become important in international judicial practice. Perhaps the most recent and controversial illustration of this interaction can be found in the plain packaging disputes against Australia, currently ongoing in parallel before the WTO dispute settlement panels (see here, here, here and here), as well as arbitral tribunals established under bilateral investment treaties (see here). For, what all these disputes share in common is the set of the underlying facts complained of, i.e. Australia’s Tobacco Plain Packaging Act 2011, and related laws and regulations, allegedly in violation of Australia’s obligations both under the WTO covered agreements and the Agreement between the Government of Australia and the Government of Hong Kong for the Promotion and Protection of Investments of 1993. Hence, in the greater context of the debate regarding the relationship between WTO and investment protection law, Nicholas DiMascio and Joost Pauwelyn have undertaken a thorough study on non-discrimination standards in the WTO covered agreement and IIAs. They persuasively concluded that ‘investors cannot assume that they will prevail on a national treatment claim before an investment tribunal even if their country has earlier prevailed on the same claim at the WTO, and vice versa’ (p. 88). But does the same apply also with respect to equitable standards of treatment also found both in WTO agreements and IIAs?