The Merging of International Trade and Investment Law

Abstract

This Article presents an account of how and why international trade and international investment law are merging. It describes this phenomenon as resulting from the dynamics of the treaty-making process and the strategies employed by litigation parties at the time of the enforcement of treaty rules. The Article makes two separate, but interrelated claims: first, it argues that the combined use of trade and investment remedies allows litigants to go beyond seeking compliance and compensation, the two traditional types of relief available in international economic law. Like other areas of public law litigation, the strategic parallel, sequential or combined use of legal processes may be used to destabilize governments' regulatory activity, to shape the interpretation of rules outside an ordinary process, or to relitigate issues settled in one regime through the venue of another. Second, it argues that the merger at issue creates specific, yet not insurmountable, challenges for the development of international law and sketches the main legal tools available to address the most pressing matters. This analysis, based on four case studies, is a timely intervention given the current negotiations of the two most significant commercial agreements since the creation of the World Trade Organization. The Transatlantic Trade and Investment Partnership and the Trans-Pacific Partnership negotiations raise important questions about the design of international governance as well as the future of research in the field of international economic law.

Keywords: International Economic Law, Treaty-Making, Trade and Investment Remedies, Transatlantic Trade and Investment Partnership, Trans-Pacific Partnership, International Governance