423 / 536
409
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.