CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ NON ǧ PRECLUDEDMEASURES IN INTERNATIONAL INVESTMENT ARBITRATION 4. Conclusion Up to a certain extent international trade and investment are currently, if not merging outright, then at least converging. Due to their partial convergence, trade and investment treaties are considered more as a “ complex regime ,” 100 with overlapping elements in the treaties softly melting into each other. They both aim to attain similar objectives. They promote investment and transnational business, economic benefits and the sustainable development, so it is no longer wise to underrate the importance of international investment and trade from the perception of improving the world. 101 Equally, they both possess similar basic concepts of MFN and NT. This should be easy to comprehend, as both the international investment and the world trade are subsumed under the same heading of international economic law, which as a stable discipline within the realm of international law includes in narrow terms also “the architecture of the global trading and monetary systems and the principles for international development and investment.” 102 As a result, incursions are inevitable. Earlier in this article I suggested an acceptance of the cross-fertilization which takes place between the international investment and trade in spite of their separate legal regulation. It may be useful to remember some of its visible examples. As early as in 2001, the tribunal in NAFTA arbitration in Mexico v. The United States of America 103 in a famous truckers’ dispute casually cited precedents from GATT jurisprudence. Moreover, the claimant later ordered retaliatory measures, typical for the WTO dispute settlement mechanism, against the US on the ground of the breach of NAFTA. 104 Much later, a comparable approach was applied by the US against the rebellious Argentina, after it had refused to pay the vast sums awarded by ICSID tribunals. Drastic move as it was, the US took unilateral financial reprisals with no hesitation and stopped providing low-interest credit facilities to Argentina via the IADB. Moreover, in 2012 it also applied international trade sanctions by suspending Argentina’s preferential trade status as a developing country under the Generalized System of Preferences, in order to force Argentina to comply with ICSID awards, rendered in favour of the US investors. 105 100 PUIG, S.: The Merging of International Trade and Investment Law, op. cit , p. 6. 101 MCRAE, D.: International Economic Law and Public International Law: The Past and The Future, Journal of International Economic Law , 2014, Vol. 17, No. 3, p. 634. 102 CHARNOVITZ, S.: The Field of International Economic Law, Journal of International Economic Law , 2014, Vol. 17, No. 3, p. 607. 103 In the Matter of Cross – Border Trucking Services, Mexico v. U.S., USA-MEX-98-2008-01 /NAFTA Arb. Panel 2001/. 104 See in detail PUIG, S.: The Merging of International Trade and Investment Law, op. cit , p. 22. 105 See e.g. ROSENBERG, CH. B.: The Intersection of International trade and International Arbitration: The Use of Trade Benefits to Secure Compliance with Arbitral Awards, Georgetown Journal of International Law , 2012–2013, Vol. 44, p. 504.

409