The WTO Solution for Investor-State Disputes

Abstract

Investment arbitration is in a constant state of flux. The latest instances of expropriation have triggered an academic debate revolving around the possibility of WTO law becoming directly applicable to investment treaties such as Bilateral Investment Treaties (BITs) or Free Trade Agreements (FTAs). This paper explores the nexus between host state obligations under BITs/FTAs on the one hand and the remedies available under the WTO Dispute Settlement Understanding (DSU) on the other hand. The paper argues that remedies available under WTO law are of limited scope and at the most would play only a supplementary role to investment arbitration. The author reaches the conclusion that in the foreseeable future, claims under the WTO DSU would remain an exclusive domain of state-to-state dispute settlement until the DSU is amended to allow private claims

Keywords: investment dispute, dispute settlement, expropriation, Free trade agreement, Bilateral investment treaty, arbitration, WTO dispute settlement