Emory International Law Review

Volume 32Issue 4
Article

Failed Boundaries: The Near-Perfect Correlation between State-To-State WTO Claims and Private Party Investment Rights

Ari Afilalo | 32 Emory Int'l L. Rev. 467 (2018)

The World Trade Organization governs international trade filings, acting at the request of contracting parties to issue rulings that invalidate national laws that violate the General Agreement on Tariffs and Trade. These controversies include plainly protectionist measures as well as other domestic laws that violate international economic law. Investment law, by contrast, is the domain of arbitral tribunals and features cases brought by private parties instead of states. While these two systems—the state-to-state WTO structure and the investor-to-state investment framework—are typically assessed differently, this empirical study concludes that private parties use investment treaties to litigate many causes of action related to trade and obtain damages for violations of trade laws. Through this analysis, these cases show a strong overlap between the trade and investment frameworks. As a result, these findings demonstrate that states with policies inconsistent with their obligations under the GATT expose themselves to possible investment arbitration claims.

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