422 / 536
408
KATARÍNA CHOVANCOVÁ
CYIL 7 ȍ2016Ȏ
In the end, it came to the conclusion that almost all non-precluded measures
adopted by Argentina in its economic crisis were partially indispensable and inevitable
in order
“to prevent the complete break-down of the financial system, the implosion of
economy and the growing threat to the fabric of Argentinean society and generally to assist
in overcoming the crisis.”
94
A stiff resistance to the
Continental
award immediately
followed. Critics looked down at the tribunal’s interpretative approach,
95
blaming it
for straying off the treaties’ unitary system of interpretation, rooted in Article 31 of
the VCLT, while infecting its interpretation of the BIT necessity doctrine with the
WTO weighing and balancing test instead.
However, this challenge might shrink a bit when considering the fact that “
The
VCLT system is the method the WTO adjudicative bodies have always used.
”
96
To the
present author, it is difficult to understand why almost a venomous criticism of the
tribunal’s bravado, laying in its unprecedented interpretation of necessity defence,
embedded in the WTO law, was needed at all.
When considering a strong suggestion regarding the review of necessary measures
taken by the state under Article XX GATT,
97
according to which “
the WTO should
employ a deferential standard of review with respect to certain national decisions and
policy choices…,
”
98
one should not turn a blind eye to striking similarities with
recommendations of contemporary authors in the area of investment law concerning
a review of the legitimacy of NPM measures taken by the host state when permitted
to do so according to the BIT based necessity defence.
By way of example, Henckels
99
repeats a suggestion fully respecting the rationale
for deference in the investment arbitration:
“…tribunals should display restraint in
evaluating host states regulatory objectives, and should refrain from second-guessing the
importance of the objective or the desired level of protection or achievement of it.”
Be
that as it may, there was then nothing unnatural about the interpretative methods,
applied by the arbitral tribunal in the
Continental
case except for obstructing a well-
trodden path of interpretation of the necessity doctrine built by investment tribunals
in older cases.
94
Ibid
., para 197.
95
DESIERTO, D. A.: Necessity and Supplementary Means of Interpretation,
op. cit
., p. 882.
96
MATSUSHITA, M., SCHOENBAUM, T. J., MAVROIDIS, P. C.:
The World Trade Organization.
Law, Practice, And Policy,
OUP, 2006, p. 29.
97
See
e.g. United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna
Products, Report of the Panel,
WT/DS381/R 15 September 2011.
98
SCHOENBAUM, T. J.: International Trade and Protection of the Environment: The Continuing
Search for Reconciliation,
The American Journal of International Law
, 1997, Vol. 91, No. 2, p. 277.
99
HENCKELS, C.: Balancing Investment Protection and the Public Interest: The Role of the Standard of
Review and the Importance of Deference in Investor-State Arbitration,
Journal of International Dispute
Settlement,
2013, Vol. 4, No. 1, p. 206.