The Use of Economics in International Trade and Investment Disputes (original) (raw)

The Use of Economics in International Trade and Investment Disputes: A Coherent Way Forward

SSRN Electronic Journal, 2016

In this paper we assess the quality and coherence of the use of economics in dispute settlement in two fields of international economic law: international trade and international investment law. We argue that four economic concepts are frequently used and/or of critical importance for both international trade and investment law. Those concepts are the concepts of "likeness"/"like circumstances", causality, "necessity" and damage calculation. We highlight differences in the way in which economics has been applied to assess these concepts and argue that coherence in the use of economics can be increased by reassessing the way in which economics is brought into submissions by parties and the processes that are relevant for adjudicators when interpreting economic evidence. We argue that a common set of guidelines for submitting quantitative evidence in WTO or investor-state dispute settlement proceedings can contribute greatly to setting quality standards and to creating trust as to the reliability and acceptability of economic evidence submitted to adjudicators. In an appendix to this paper we make suggestions as to what such guidelines could look like.

The Use and Abuse of WTO Law in Investor – State Arbitration: Competition and its Discontents

This article offers a contribution to the broader project of isolating the causes of inconsistency in investor -state arbitral jurisprudence. It examines the norm of national treatment and explores the methodological tendency of arbitrators to draw on complex WTO jurisprudence as a means of guiding the application of a similar but not identical legal norm in the investment treaty setting. It argues that, when one unpacks the complicated arbitral jurisprudence on national treatment, misuse of WTO law is the controlling factor for critical inconsistency in the jurisprudence. The article examines a central question surrounding national treatment under investment treaties being the role for competition between foreign and domestic actors in determining whether they stand ' in like circumstances ' . It also focuses on two key cases -Occidental v. Ecuador and Methanex v. USA -both of which are under-analysed in the secondary literature. The article concludes by identifying implications of the problematic interpretative methods at play and canvasses suggestions on reform models to incentivize probity and consistency in interpretation in this fi eld of international law.

The choice between arbitration and judiciary in international trade and investment

In this contemporary globalization, the international arena is dominated by a tendency to arbitrate all disputes related to international trade and investment, where the concerned parties agree to entrust the current or future disputes that may occur; to a private arbitrators of their choice, and who are recognized for their competence and expertise in this area to settle such disputes with binding arbitration provisions. It has helped to flourish and spread of the international commercial arbitration in the markets of trade and investment as a legal system for the rapid resolution of disputes and its preference increased over the national judiciary in various countries of the world today, for several considerations, including:-1/ The desire of practitioners of various international commercial activities and investment in resolving disputes arising out of their contractual or non-contractual relationships by a satisfactory solutions that are usually supportive to the reality of the niche in which they work. 2/ The desire of the contractual relationship parties (the litigants involved in a dispute) towards the arbitration proceedings to be conducted with least publicity and with greatest possible confidentiality, both in terms of holding meetings or in terms of limiting the persons involved, including the advisers, without giving the right to participate to the others wherever they wish, as well as to preserve the confidentiality of the expected arbitral award to be issued and not to be published for public, in order to maintain secrecy their transactions and works.

International investment law and arbitration

Analogies in International Investment Law and Arbitration

International Investment Law is one of the most dynamically growing fields of International Law as shown by the volume of Bilateral Investment Treaties (BITs), and investment chapters in a growing numbers of regional and mega-regional trade agreements. This paper explores the origin, evolution and operation of International Investment Law. It discusses the main actors, the protections afforded to foreign investments and investors, and the content of modern BITs. The legal issues and challenges International Investment Law faces today are brought into perspective. Particularly, this paper provides an assessment of the measures put forth by the European Union aimed at transforming the traditional investor-State arbitration system to an Investment Court System. An examination of the NAFTA re-negotiations is also presented, including the impact that CETA, a trade deal between the EU and Canada could have in the outcome of the current re-negotiations.

67. International investment arbitration: Winning, losing and why

2012

This second edition of this publication provides an overview of important contemporary issues relating to foreign direct investment (FDI) and multinational enterprises for all those who are interested in this subject, but are not always in a position to follow diverse perspectives and what is being written in the various corners of this field. The contributions are grouped under the following headings: attracting FDI and its impact; the rise of emerging market investors; national policies; sustainable international investment; and international investment treaties and arbitration. The volume brings together all Perspectives published since the inception of this series until 2012.https://digitalcommons.wcl.american.edu/facsch\_bk\_contributions/1391/thumbnail.jp