International investment arbitration, commercial arbitration, and WTO litigation are no longer separate and isolated disciplines. Increasingly, the same international trade dispute or set of potentially unlawful measures taken by a State are subject to overlapping substantive rules and standards contained in a WTO treaty, an investment treaty, or a commercial or investment agreement, each covering a different aspect and each providing for different jurisdictions, procedural avenues, substantive standards and remedies. There exists, however, a wide range of 'cross-cutting' issues and points of 'cross-fertilization' between international commercial arbitration, investment arbitration and WTO litigation, which users of these regimes should be aware of. This book deals with the overlap of the three regimes and discusses the resulting advantages and pitfalls.
This book gathers contributions by twenty-five world-class practitioners, leading academics, adjudicators, and civil servants in the field of WTO litigation, investment arbitration, and commercial arbitration. It provides a practical cross-cutting analysis of the different dispute settlement mechanisms that exist in international trade and investment and offers valuable insights into how to use best practices among the three systems.
The book addresses the critical areas of overlap that exist in the three disciplines, including:
- management of parallel proceedings and role of politics and 'pressure points' within host governments;
- selection and appointment of arbitrators, panels and Appellate Body members;
- use of experts and economics;
- search of the applicable law;
- interpretation of the national treatment principle and other substantive standards and legal tests;
- methods of redressing 'moral damage';
- regimes of review, appeals and annulment;
- enfoncement systems of awards, implementation of WTO Law and other legal remedies; and
- allocation of costs.
In addition to being the first in-depth exploration of the interaction among WTO litigation, investment arbitration and international commercial arbitration, this book brings a singularly practical perspective to bear on the three dispute settlement mechanisms and how each can be used to best advantage.
Edited by Jorge Huerta-Goldman, Antoine Romanetti & Franz X. Stirnimann.