Book Symposium Investment Law: A Reply to Gabrielle Marceau

[Dr Mary E. Footer is Professor of International Economic Law at the University of Notthingham, School of Law.]

First of all my thanks to Freya Baetens and Opinio Juris for hosting the Book Symposium on Investment Law and for giving me the opportunity to post details of my chapter. I would also like to thank Gabrielle Marceau for her generous praise of my piece but more importantly for her instructive comments.

In response I shall pick up on one of her comments concerning the issue of “cross-fertilisation” of WTO jurisprudence and investor-state arbitration to which I refer in my chapter. I was unaware of the recent review of a large number of decisions of international courts and tribunals, including investor-state arbitration decisions, that make reference to WTO case law in their findings. While this is an impressive undertaking, I am wondering to what extent those decisions have been analysed and what conclusions, if any, can be drawn from this exercise? For example, is there a trend in investment arbitration to reach out to WTO case law in dealing with principles common to both trade and investment such as the principle of non-discrimination? As I have noted in my chapter, with reference to Occidental v Ecuador not all investment arbitration tribunals have been sympathetic to the importation of WTO case law when interpreting the national treatment standard. Or is the trend more in the procedural sphere, for example with respect to things like the burden of proof – here again there may be limits on the cross-fertilisation of WTO jurisprudence, as was demonstrated in Thunderbird v Mexico.

And what, if anything, can WTO panels and the Appellate Body understand from investor-state arbitration? Are there lessons to be learnt from the way in which investment arbitration tribunals interpret and apply ‘any relevant rules of international law’ in the sense of Article 31(3)(c) of the Vienna Convention on the Law of Treaties? What about the customary international law rule on attribution in the field of state responsibility – in particular where it concerns organs that exercise elements of governmental authority – as suggested by Santiago Villalpando? Could the interpretation of investment treaty-based defences in the form of exceptive clauses for the environment and consumer health and safety or the doctrine of necessity, including ‘economic necessity’, offer any guidance in WTO dispute settlement? Likewise, could the application by investment arbitration tribunals of broader principles of international law, such as good faith, equity and the doctrine of legitimate expectations in investment law yield insights for WTO jurisprudence?

There are of course a host of other contentious issues in the relationship between WTO dispute settlement and investor-state arbitration involving inter alia competing jurisdictional issues, competing fora (giving rise to parallel investment and trade disputes) and the challenge of WTO-inconsistent measures in investment, to name but a few. Many of them are based on systemic differences and structural variations between investor–state arbitration and WTO dispute settlement that I have discussed elsewhere. Instructive in explaining some of the broader issues in this respect is Anthea Roberts who frames the relationship between the investment treaty system and other areas of public and public international law, including international trade law, as a ‘clash of paradigms’.