Obligations Versus Rights: Substantive Difference Between WTO and International Investment Law

Abstract

WTO law remains relatively uncontentious whereas international investment law elicits much more debate. This article posits that the differences in reception are attributable to deeper substantive differences about what is protected under each regime. In WTO law what is protected is the sum total of all commitments and concessions under the WTO Agreement, something that can be thought of as a “public” good. When a country injures that good, the remedy is for the country to cease the injury, a requirement that naturally places emphasis on obligation. In international investment law, by contrast, what is protected is individualized to a particular investor. The violation is evidently “private”. When a country injures that good, the usual remedy is compensation, a requirement that naturally places emphasis on the investor’s rights. This difference suggests that WTO law is primarily a law of obligation which is equality-oriented, prospective, constitutive and deductive, whereas international investment law is primarily a law of rights which is fairness-oriented, retrospective, contractual and inductive. A law of rights is subtractive, and to that extent, less stable. The identification explains why there have been recent moves to constitutionalize international investment law by introducing a greater degree of obligation. The change is meant to redress the perceived jurisprudential imbalance in the field and strengthen its sense of community.

Keywords: international economic law, WTO, investment law, obligation, right, jurisprudence, theory