Procedural and Normative Competition between the WTO’s Dispute Settlement and the Investor-State Arbitration: Focusing on the National Treatment Principle

Tomoko Yamashita
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Tomoko Yamashita: Associate Professor of International Law, Aichi Prefectural University

Public Policy Review, 2020, vol. 16, issue 5, 1-23

Abstract: The history and reality of international dispute settlement required the international community to develop two independent mechanisms for trade and investment. However, in recent years, there is an increasing number of cases in which the same dispute is simultaneously dealt by the WTO and by the investor-state dispute settlement (ISDS), namely, investor- state arbitration under international investment agreements (IIAs). As a result, more and more normative overlaps and practical interactions are observed between the two legal systems. Against this backdrop, the present paper considers how the international mechanisms of trade and investment legally compete, co-exist and interact each other in the procedure and reality of dispute settlement. First, it examines procedural and technical duplication between the WTO’s dispute settlement and ISDS. Then, with a special focus on the national treatment principle, a fundamental rule common to both of the systems, it makes clear how the WTO and ISDS concur for the protection of substantial rights of foreigners in actual dispute settlements.

Keywords: WTO agreements; international investment agreements (IIAs); ISDS clause; investor-state arbitration; national treatment principle; Article 23 of the Dispute Settlement Understanding (DSU) (search for similar items in EconPapers)
JEL-codes: F13 F21 F53 F55 K33 (search for similar items in EconPapers)
Date: 2020
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