The Use and Abuse of WTO Law in Investor-State Arbitration: Competition and its Discontents

Posted: 26 Oct 2009

See all articles by Jürgen Kurtz

Jürgen Kurtz

University of Melbourne - Law School

Date Written: August 2009

Abstract

This article offers a contribution to the broader project of isolating the causes of inconsistency in investor-state arbitral jurisprudence. It examines the norm of national treatment and explores the methodological tendency of arbitrators to draw on complex WTO jurisprudence as a means of guiding the application of a similar but not identical legal norm in the investment treaty setting. It argues that, when one unpacks the complicated arbitral jurisprudence on national treatment, misuse of WTO law is the controlling factor for critical inconsistency in the jurisprudence. The article examines a central question surrounding national treatment under investment treaties being the role for competition between foreign and domestic actors in determining whether they stand ‘in like circumstances’. It also focuses on two key cases - Occidental v. Ecuador and Methanex v. USA - both of which are under-analysed in the secondary literature. The article concludes by identifying implications of the problematic interpretative methods at play and canvasses suggestions on reform models to incentivize probity and consistency in interpretation in this field of international law.

Suggested Citation

Kurtz, Jürgen, The Use and Abuse of WTO Law in Investor-State Arbitration: Competition and its Discontents (August 2009). European Journal of International Law, Vol. 20, Issue 3, pp. 749-771, 2009. Available at SSRN: https://ssrn.com/abstract=1493093 or http://dx.doi.org/10.1093/ejil/chp040

Jürgen Kurtz (Contact Author)

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia
613 8344 4770 (Phone)
613 8344 9971 (Fax)

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