The Line of Equilibrium: Improving the Legitimacy of Investment Treaty Arbitration Through the Application of the WTO's General Exceptions
Arbitration International, Vol 32:4, 575-587, 2016
18 Pages Posted: 28 Aug 2014 Last revised: 22 Dec 2016
Date Written: August 27, 2014
This article considers the application of the general exceptions of the WTO GATT and GATS to investment arbitration under international investment treaties. It suggests that the designated categories and balancing contemplated by the WTO exceptions, along with its sophisticated and established jurisprudence may offer useful guidance to arbitrators seeking to evaluate public interest exceptions implemented by host states. Improvements to the trade-inspired general exceptions for use in the investment context in order to enhance this exercise are also proposed. Taken together these initiatives may help promote the legitimacy of investment arbitration, a procedure which continues to face criticism for its failure to consider non-economic elements raised during disputes.
Keywords: Investment arbitration, WTO, public interest, investment treaties, general exceptions
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