Abstract
Despite an environment of economic and political crisis and the fragmentation of trade and investment rules through the creation of several preferential trade agreements, the DSB has survived through the years as a stable and technical organism with extensive case law. However, the new investment-sensitive issues have required a more complete and consistent regulation through international trade and investment rules. As a consequence, bilateral investment agreements and the recently created mega-agreements, such as the CPTTP, the EU-Canada CETA, and the project of TTIP, established new investment parameters and dispute settlement mechanisms to deal with investment disputes. The chapter investigates the evolution of the regulation on investments in the multilateral, bilateral, and regional sectors, as well as the position of Brazil and the possibility of conflict between the WTO Dispute Settlement System and the new dispute settlement mechanisms on investments created by the bilateral and regional agreements.
This contribution was developed during her post-doctoral program at USP which was concluded in 2018.
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Notes
- 1.
International economic law can be defined as covering all those international rules pertaining to economic transactions and relations, as well as those pertaining to governmental regulation of economic matters. Intrinsically, international economic law includes international rules on trade in goods and services, economic development, intellectual property rights, foreign direct investment, international finance and monetary matters, commodities, food, health, transport, communications, natural resources, private commercial transactions, nuclear energy etc. International rules on trade in goods and services, i.e. international trade law, constitute the hard core of international economic law. On the other hand, International trade law consists of numerous bilateral or regional trade agreements and, in turn, multilateral trade agreements. As examples of bilateral and regional trade agreements, there are the North American Free Trade Agreement (NAFTA) and the MERCOSUL Agreement, as regional trade agreements; and the Trade Agreement between the United States and Israel, and the Agreement on Trade in Wine between the European Community and Australia as bilateral trade agreements. The number of multilateral trade agreement, as explain Van den Bossche and Zdouc, is more limited, including for example the 1983 International Convention on the Harmonized Commodity Description and Coding System, as amended (the HS Convention) and the 1973 International Convention on the Simplification and Harmonization of Customs Procedures, as amended (the Kyoto Convention). To conclude, the authors highlight the most important and broadest of all multilateral trade agreements is the 1994 Marrakesh Agreement Establishing the World Trade Organization, commonly referred to as the WTO Agreement. Van den Bossche and Werner (2014).
- 2.
The Resulted of the Uruguay Round of Multilateral Trade Negotiations: The Legal Texts. Available at: www.wto.org/english/docs_e/legal_e/legal_e.htm. Accessed on: January 25, 2017.
- 3.
42 cases cite the Agreement on TRIMS in the request for consultations. See: https://www.wto.org/english/tratop_e/dispu_e/dispu_agreements_index_e.htm. Accessed on: 20 July 2018.
- 4.
World Trade Organization Website. Chronological List of Dispute Cases. Available at: https://www.wto.org/english/tratop_e/dispu_e/dispu_status_e.htm. Accessed on: May 28, 2017.
- 5.
The members of TPP are: Australia, Canada, Japan, Malaysia, Mexico, Peru, United States, Vietnam, Chile, Brunei, Singapore and New Zealand.
- 6.
Environmental Non-Governamental Organizations (NGOs) submitted two amicus curiae briefs to the panel, in support of the United States ban. A consortium of NGOs composed by two United States based groups filed one brief (The Center for International Environmental Law and the Center for Marine Conservation, based in Washington D.C., were joined by three groups based in developing countries: The Environmental Foundation Ltd of Sri Lanka, The Philippine Ecological Network and the Red Nacional de Accion Ecologica of Chile.) The WWF-World Wildlife Fund for Nature filed the other. Shaffer (1999).
- 7.
With respect to the expansion of a covered investment it may be submitted only to the extent the measure relates to the existing business operations of a covered investment and if the investor has, as a result, incurred loss or damage with respect to the covered investment.
- 8.
According to Art. 8.27, paragraph 2: “The CETA Joint Committee may decide to increase or to decrease the number of the Members of the Tribunal by multiples of three”.
- 9.
However, the terms of seven of the 15 persons appointed immediately after the entry into force of the Agreement, to be determined by lot, shall extend to six years.
- 10.
The treaties signed were with Portugal (1994), Chile (1994), the United Kingdom (1994), Switzerland (1994), Denmark (1995), Finland (1995), France (1995), Germany (1995), Italy (1995), South Korea (1995), Venezuela (1995), Cuba (1997), the Netherlands (1998), and Belgium/Luxembourg (1999).
- 11.
According to Gabriel (2016): “The ombudsman was inspired mainly by the South Korean Office of the Foreign Investment Ombudsman, which has operated under the Korea Trade-Investment Promotion Agency since 1998 (United Nations Conference on Trade and Development 2010). In South Korea, the ombudsman, appointed by the president, has extensive knowledge of, and experience in, investment and international trade. He is advised by a range of experts in various related fields, and his job is to collect and analyze concerns that foreign companies face. The ombudsman makes recommendations and communicates with other important organs and administrative agencies, proposing policies to improve the investment promotion system and solve problems raised by foreign investors”.
- 12.
The two studies produced by the European Commission are: Ecorrys, Non-Tariff Measures in EU-U.S. Trade and Investment – An Economic Analysis, 2009; and CEPR, Reducing Transatlantic Barriers to Trade and Investment: An Economic Assessment, 2013.
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The authors would like to thank Michelle Ratton Sanchez Baddin and Cristiane Lucena Carneiro for their very useful comments and feedback regarding an earlier version of this chapter.
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Oliveira Sá Pires, L.M.d., Gabriel, V.D.R. (2019). The Eminent Conflict Between the WTO DSB and the Proposed International Investment Court to Deal with Investment Disputes. In: do Amaral Júnior, A., de Oliveira Sá Pires, L.M., Lucena Carneiro, C. (eds) The WTO Dispute Settlement Mechanism. Springer, Cham. https://doi.org/10.1007/978-3-030-03263-0_17
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