Investment Treaty Arbitration and the World Trade Organization: What Role for Systemic Values in the Resolution of International Economic Disputes?
20 Pages Posted: 21 Feb 2014
Date Written: February 1, 2014
The World Trade Organization (“WTO”) Dispute Settlement System and the International Centre for the Settlement of Investment Disputes (“ICSID”) are two of the most widely used methods of international dispute settlement. An important reason for this popularity is that States have consented in advance to compulsory dispute settlement by the WTO and also, but to a lesser extent, by ICSID arbitration. In the case of the WTO it is the WTO Dispute Settlement Understanding that confers compulsory jurisdiction on the WTO Dispute Settlement System; while in the case of ICSID a large number of States have consented in advance to ICSID jurisdiction over their disputes with investors by means of express provisions in Bilateral Investment Treaties. Moreover, an important additional reason for the widespread use of ICSID as a forum for international dispute settlement is that investors – who are in effect the substantive rights holders under Bilateral Investment Treaties – are often given the right to institute ICSID arbitration directly against the host State. But the WTO, unlike ICSID, is much more than just a dispute settlement system: the WTO possesses an important institutional element that has the capacity to formulate and apply systemic values, and it is this feature which represents a fundamental difference between the WTO Dispute Settlement System and ICSID arbitration. This element of WTO dispute settlement provides this article with an analytical perspective that is used to evaluate and compare a number of key elements of WTO and ICSID dispute settlement in order to gauge the extent to which broader values can, or indeed should, play a role in these two leading fora for the settlement of international economic disputes.
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