Published 21 November 2011
The following four papers have been added to the TDM 3 (2011) special "Intersections: Dissemblance or Convergence between International Trade and Investment Law"
A Comparative Study of Promotion and Protection of Investments Agreement among the ECO Member States and TRIMs Agreement
The Member States of the Economic Cooperation Organization (ECO) adopted an Agreement for the Promotion and Protection of Investment (APPI) in 2005. This Agreement is classified as an Asian regional investment agreement and emphasizes the promotion of foreign investment rather than investment liberalization. The World Trade Organization (WTO) Agreement on Trade-Related Investment Measures (TRIMs) applies to investment measures related to trade in goods and indirectly pursues liberalization of foreign investment. The present article compares the abovementioned agreements to determine if they are compatible with one another.
by Mary B. Ayad
The nexus of legal and economic modernisation is demonstrated through the nexus of Investment and Commercial Arbitration Laws with economic growth. The author maintains that legislation that encourages investment and trade plays an active role in enhancing regional and global economic development. As a result of accession to the WTO, the Gulf Arab States have begun the process of modernising their International Investment and International Arbitration Laws to meet the requirements of the WTO and that this development has not come about as a result of any legal obligation imposed by the WTO-GATT but as a result of practical reasons.
Notably, SD Myers v Canada demonstrates the point of convergence in the FET standard in both WTO & BIT arbitrations. This is undeniably a positive development that has seen the growth of Gulf Arab Regional Arbitration Centres in Bahrain (under the auspices of the Commercial Arbitration Centre for the States of the Co-Operation Council for the Arab States of the Gulf) and in the United Arab Emirates (Dubai International Arbitration Centre DIAC and the Dubai International Finance Centre DIFC Free Zone), as well as modern Arbitration Laws.
Critics who argue that investment does not foster economic growth ignore the benefits to local communities of infrastructure and other projects that bring funding into a country. In that light, it is argued herein that investment and Arbitration Laws do much to help or hinder investment and economic growth; because investment has been empirically shown to improve local economies, notably in the case of Egypt. Arguably, the new Gulf Arbitration Centres and legislation are an enormous step towards the fulfilment of WTO economic goals and demonstrate the value of accession to Gulf Arab States in the areas of economic development and legislative modernisation.
The main aim of this study therefore is to establish the impact of WTO accession on GCC (Gulf Cooperation Council) Countries? Arbitration Laws; a claim that will be substantiated by evidence and has heretofore never been discussed before.Dr. Tomer Broude
As substantive economic and social phenomena, international trade and investment are inextricably linked. Yet like twins separated at birth, for decades they have been regulated by discrete international legal systems. Despite the historic parting of their respective legal systems, international trade and investment are more closely tied to each other today than ever before, with a significant portion of international trade and investment flows occurring in global supply chains within transnational corporations. However, convergence between trade and investment law is piecemeal, lacking a unifying logic. Taking a relatively compartmentalized issue - the differential treatment of subsidies in trade and in investment - as a case in point, this essay will query whether the continued distinction between trade and investment law, derived from historical and political causes that are no longer relevant, is still justified, or whether it is time to seriously consider consolidating and reconceiving the two fields as one.
Forthcoming in Pierre Sauvé and Roberto Echandi "New Directions and Emerging Challenges in International Investment Law and Policy" (Cambridge University Press, 2012) Article: November 2011Brooks E. Allen
In recent years, arbitral practitioners have looked with increasing frequency to the World Trade Organization (WTO) for guidance. Arbitral tribunals constituted under the auspices of the International Centre for the Settlement of Investment Disputes (ICSID) have cited and discussed WTO principles and jurisprudence in their awards. In addition, commentators have debated the relevance of WTO rules, such as nondiscrimination and most favored nation treatment, to investor-state arbitration.
As further evidence of the apparent convergence between the worlds of international arbitration and WTO dispute settlement, a single government measure has in two instances given rise to parallel proceedings before the WTO and arbitral tribunals. The softwood lumber dispute between the United States and Canada, which arose out of the US imposition of countervailing and antidumping duties, yielded a politically-charged WTO case. At the same time, Canadian investors initiated arbitral proceedings against the United States based on the same measures, seeking recovery under Chapter 11 of the North American Free Trade Agreement (NAFTA). Likewise, a Mexican tax on sweeteners gave rise to both a successful WTO challenge by the United States and NAFTA claims by US investors. The existence of such parallel disputes has prompted considerable debate over the extent to which findings in a WTO dispute are relevant to (or dispositive of) claims brought in an investor-state arbitration arising out of the same government measure, and vice versa.
This chapter will briefly address an issue that has received scant attention in these debates - namely, whether the distinctive remedies available in the WTO dispute context offer any insights for arbitral practitioners.
Footnotes omitted from this introduction. This chapter is from ASA Performance as a Remedy. © JurisNet, LLC 2011 www.jurispub.com. Republished with permission.