03
Oct
Book Symposium Investment Law: Comments on Mary E. Footer’s Chapter
[Gabrielle Marceau is Counsellor in the Legal Affairs Division of the WTO and Associate Professor at the Faculty of Law in the University of Geneva. Opinions expressed are personal to the author and do not bind WTO Members or the WTO Secretariat.] In her chapter "International Investment law and trade: the relationship that never went away Mary E. Footer explores the relationship between the international investment and trade regimes, from various perspectives. Mary's chapter is a must read; in a few pages you will learn about the history of the evolution of investment and trade agreements and understand their natural interaction. The term "interaction" is important because trade and investment remain two distinct legal systems or legal regimes that interact with each other in various ways. Mary's historical analysis of the essentially bilateral nature of investment rules seems quite persuasive and offers a very insightful background for the discussions which follow. When the author compares this system of bilateral deals with the multilateral nature of the WTO/GATT regime, the reader is provided with informed explanations. Then Mary E. Footer makes an excellent comparative study of the investment and trade regimes with the purpose of examining the similarities and differences in their approach towards multilateralism. With respect to what she calls the "investment regime," she acknowledges that it may be true that the extraordinary number of individual BITs constitute a special juridical regime. Footer highlights that even though the BITs have a similar structure, they nevertheless differ in details. In fact, they differ in detail to such an extent that it would be difficult to argue that they are capable of giving rise to customary international law principles. With respect to differences and similarities between trade and investment, Footer points out two grounds of divergence: First, the trade regime, through MFN, promotes multilateral liberalization. A majority of BITs, on the other hand, offer controlled entry that reserve the right of the host state to regulate the inflow of foreign investment into its territory. Second, while the investment regime is left with clusters of individual BITs which bind only two states, the WTO represents a common agreement among all Members. One similarity between the two regimes she argues, is that both proceed with negotiations that are bilateral in character. I would add that another important similarity is that both systems prohibit unjustifiable discrimination. The two systems have, however, adopted slightly divergent approaches on when discrimination is justifiable and when it is not. In any case, I believe the impact of those similarities and differences should be further analysed and understood. Of course I can only agree with Mary Footer's conclusion that the WTO is much more than the sum of its parts and is a dynamic and evolving institution which operates in a more complex regime of norms, decision-making activities and procedures than the GATT. In contrast, the relatively uncoordinated system of bilateral, regional and plurilateral instruments in the field of investment represents something different from the full-fledged multilateral trade regime. Ultimately, on the basis of her analysis, Mary Footer comes to the following conclusions:- The "living apart together" (LAT) relationship between international investment and trade is as strong today as it ever was.
- In international relations, there is the emergence of different but interconnected treaty regimes in investment and trade.
- The challenge would lie in determining the extent to which the interaction between international investment and trade is going to lead to either greater convergence or a possible divergence.