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The Dejudicialization of International Economic Law

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European Yearbook of International Economic Law 2021

Part of the book series: European Yearbook of International Economic Law ((EUROYEAR,volume 12))

Abstract

Over the past decades, the phenomenon of the “judicialization” and “proliferation of international courts and tribunals” has dominated international legal scholarship. This trend has also affected international economic law, and scholarship continues to pay significant attention to the continued proliferation of dispute settlement mechanisms, primarily in the investment and trade sectors. It is questionable, however, whether every third-party dispute resolution means should be deemed judicial. New dispute resolution mechanisms in the investment and trade sectors face constraints on their powers, for instance regarding the regulation of procedure, the determination of standing to be sued, and the interpretation of the applicable law. This chapter inquires whether the promotion of such constrains impairs the judicial character of these dispute settlement bodies. The chapter first reviews several basic notions behind the judicial character, namely the settlement of disputes, clarification and development of the law, independence, impartiality, and adversariality. It then assesses the promoted limits on the powers of courts and tribunals in the investment and trade sectors. The chapter concludes that the advancement of certain constraints on judicial powers in the field of international economic law marks a departure from the promotion of the judicial towards more administrative dispute settlement means.

The views expressed in this chapter are strictly personal.

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Notes

  1. 1.

    See, for example, Alter (2014) and Helfer and Slaughter (2005).

  2. 2.

    See, for example, Romano et al. (2014) and Keohane et al. (2000).

  3. 3.

    Procedurally, jurisdictions of multiple international courts and tribunals may overlap. Substantively, multiple international courts and tribunals can interpret and apply the same law. See, among many others, Bennouna (2012); Brown (2007), pp. 29–32; Dupuy and Viñuales (2014).

  4. 4.

    Alter et al. (2019), p. 458, state that ‘judicialization is not a one-way phenomenon’.

  5. 5.

    See, for example, Madsen et al. (2018).

  6. 6.

    Abebe and Ginsburg (2019).

  7. 7.

    See, for example, Follesdal and Ulfstein (2018).

  8. 8.

    Comprehensive Economic and Trade Agreement Between Canada and the European Union, 30 October 2016, not in force, c. 8, s. F; EU-Singapore Investment Protection Agreement, 19 October 2018, not in force, c. 3; EU-Vietnam Investment Protection Agreement, 30 June 2019, not in force, c. 3.

  9. 9.

    Comprehensive and Progressive Agreement for Trans-Pacific Partnership, 8 March 2018, in force 30 December 2018, c. 9, s. B; Agreement Between the United States of America, the United Mexican States, and Canada, 30 November 2018 and 10 December 2019, in force 1 July 2020, annex 14-D.

  10. 10.

    Comprehensive Economic and Trade Agreement Between Canada and the European Union, 30 October 2016, not in force, c. 29; EU-Singapore Free Trade Agreement, 19 October 2018, in force 21 November 2019, c. 14; EU-Vietnam Free Trade Agreement, 30 June 2019, in force 1 August 2020, c. 15 (all referring to an “arbitration panel”). See also Comprehensive and Progressive Agreement for Trans-Pacific Partnership, 8 March 2018, in force 30 December 2018, c. 28; Agreement Between the United States of America, the United Mexican States, and Canada, 30 November 2018 and 10 December 2019, in force 1 July 2020, c. 31 (both referring to a “panel”).

  11. 11.

    Nottebohm Case (Liechtenstein v. Guatemala) (Preliminary Objection) [1953] ICJ Reports 111, p. 120.

  12. 12.

    CJEU, Opinion 1/17, Comprehensive Economic and Trade Agreement between Canada, of the one part, and the European Union and its Member States, of the other part (CETA), ECLI:EU:C:2019:341, paras. 189–204.

  13. 13.

    See, for example, Stephens v. Malta (No. 1), App. No. 11956/07 (ECtHR, 21 April 2009), para. 95.

  14. 14.

    Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal) (Judgment) [1991] ICJ Reports 53, para. 49.

  15. 15.

    Lauterpacht (1958), pp. 3–5; Scobbie (1997), pp. 277–278.

  16. 16.

    It is well-known that disputing parties can empower the ICJ to decide a case ex aequo et bono. Statute of the International Court of Justice, 26 June 1945, in force 24 October 1945, 3 Bevans 1153, art. 38(2). See also Amerasinghe (2015), pp. 687–689.

  17. 17.

    See, for example, von Bogdandy and Venzke (2013).

  18. 18.

    Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Reports 226, para. 18.

  19. 19.

    Romak S.A. (Switzerland) v. The Republic of Uzbekistan, PCA Case No. AA280, Award (26 November 2009), para. 171.

  20. 20.

    See, for example, Appellate Body Report, United States – Final Anti-dumping Measures on Stainless Steel from Mexico, WT/DS344/AB/R, adopted 20 May 2008, AB-2008-1, paras. 158–162.

  21. 21.

    Appellate Body Report, Japan – Taxes on Alcoholic Beverages, WT/DS8/AB/R, WT/DS10/AB/R, and WT/DS11/AB/R, adopted 1 November 1996, AB-1996-2, p. 14.

  22. 22.

    Appellate Body Report, United States – Final Anti-dumping Measures on Stainless Steel from Mexico, WT/DS344/AB/R, adopted 20 May 2008, AB-2008-1, para. 158.

  23. 23.

    For example, Tams (2005), pp. 25–40; Gaja (2018).

  24. 24.

    Although active/passive legitimation pertains to the substance of claims, it has procedural effects such as on the naming of parties. See Maritimo de Madeira – Futebol SAD v. Desportivo Brasil Participacoes LTDA, CAS Case No. 2013/A/3278, Award (2 June 2014), paras. 54–63. See also, for the link to “direct, personal and actual interest”, Paolo Barelli v. Fédération Internationale de Natation, CAS Case Nos. 2016/A/4924 and 2017/A/4943, Arbitral Award on the Issue of Standing (28 June 2017), paras. 85–105.

  25. 25.

    Monetary Gold Removed from Rome in 1943 (Italy v. France, UK, and USA) (Preliminary Question) (Judgment) [1954] ICJ Reports 19, pp. 30–33.

  26. 26.

    Monetary Gold Removed from Rome in 1943 (Italy v. France, UK, and USA) (Preliminary Question) (Judgment) [1954] ICJ Reports 19, p. 32.

  27. 27.

    Monetary Gold Removed from Rome in 1943 (Italy v. France, UK, and USA) (Preliminary Question) (Judgment) [1954] ICJ Reports 19, pp. 32–33; East Timor (Portugal v. Australia) (Judgment) [1995] ICJ Reports 90, paras. 28–29, 34.

  28. 28.

    See in this respect Mollengarden and Zamir (2021).

  29. 29.

    Monetary Gold Removed from Rome in 1943 (Italy v. France, UK, and USA) (Preliminary Question) (Declaration of Sir Arnold McNair) [1954] ICJ Reports 19, p. 35.

  30. 30.

    The ICJ has referred to the “antecedent character” of legal standing. See South West Africa (Ethiopia v. South Africa; Liberia v. South Africa) (Second Phase) (Judgment) [1966] ICJ Reports 6, paras. 4–6.

  31. 31.

    Certain Phosphate Lands in Nauru (Nauru v. Australia) (Preliminary Objections) [1992] ICJ Reports 240, paras. 48–55 (dismissing the objection that the nature of responsibility required joint respondents and stating that the issue of joint and several liability belonged to the merits, and then focusing on the consent-related issues).

  32. 32.

    Paparinskis (2020), pp. 76–79.

  33. 33.

    See also Rosenne (2006), p. 546 (“The existence of this limitation on the Court’s jurisdiction following from the absence from the litigation of essential parties, as a principle of general international law and as a feature of the law of international judicial procedure, is not open to question.”); and Crawford (2013), p. 663 (the Monetary Gold principle and the concept of indispensable parties are in practice closely related).

  34. 34.

    Certain Phosphate Lands in Nauru (Nauru v. Australia) (Preliminary Objections) [1992] ICJ Reports 240, para. 53 (“National courts, for their part, have more often than not the necessary power to order proprio motu the joinder of third parties who may be affected by the decision to be rendered; that solution makes it possible to settle a dispute in the presence of all the parties concerned. But on the international plane the Court has no such power. Its jurisdiction depends on the consent of States and, consequently, the Court may not compel a State to appear before it, even by way of intervention.”).

  35. 35.

    Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) (Judgment) [2012] ICJ Reports 422, paras. 64–70.

  36. 36.

    Chevron Corporation and Texaco Petroleum Company v. The Republic of Ecuador, PCA Case No. 2009-23, Third Interim Award on Jurisdiction and Admissibility (27 February 2012), paras. 4.61–3.

  37. 37.

    Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Jurisdiction and Admissibility) [1984] ICJ Reports 392, para. 88 (finding that no other state was truly indispensable in the process); Panel Report, Turkey – Restrictions on Imports of Textile and Clothing Products, WT/DS34/R, adopted 19 November 1999, 99-2081, para. 9.11 (finding that the European Communities were not an essential party).

  38. 38.

    Crawford (2013), p. 662.

  39. 39.

    See, for example, Appellate Body Report, European Communities – Regime for the Importation, Sale and Distribution of Bananas, WT/DS27/AB/R, adopted 25 September 1997, AB-1997-3, paras. 132–138.

  40. 40.

    Oil Platforms (Islamic Republic of Iran v. United States of America) (Preliminary Objection) (Judgment) [1996] ICJ Reports 803, para. 16; Oil Platforms (Islamic Republic of Iran v. United States of America) (Preliminary Objection) (Separate Opinion of Judge Higgins) [1996] ICJ Reports 847, para. 33.

  41. 41.

    See, for example, SGS Société Générale de Surveillance S.A. v. Republic of the Philippines, ICSID Case No. ARB/02/6, Decision of the Tribunal on Objections to Jurisdiction (29 January 2004), para. 26.

  42. 42.

    Case concerning the Northern Cameroons (Cameroon v. United Kingdom) (Preliminary Objections) (Judgment) [1963] ICJ Reports 15, p. 38; Nuclear Tests (Australia v. France) (Judgment) [1974] ICJ Reports 253, paras. 55–62.

  43. 43.

    Immunities and Criminal Proceedings (Equatorial Guinea v. France) (Preliminary Objections) (Judgment) [2018] ICJ Reports 292, para. 150.

  44. 44.

    Şerife Yiğit v. Turkey, App. No. 3976/05 (ECtHR, 2 November 2010), para. 52.

  45. 45.

    See also Nuclear Tests (Australia v. France) (Judgment) [1974] ICJ Reports 253, para. 57 (“… the Court can exercise its jurisdiction in contentious proceedings only when a dispute genuinely exists between the parties. In refraining from further action in this case the Court is therefore merely acting in accordance with the proper interpretation of its judicial function.”).

  46. 46.

    Brown (2006), pp. 228–229.

  47. 47.

    See, in general, Case concerning the Northern Cameroons (Cameroon v. United Kingdom) (Preliminary Objections) (Judgment) [1963] ICJ Reports 15, p. 29; Nuclear Tests (Australia v. France) (Judgment) [1974] ICJ Reports 253, para. 23.

  48. 48.

    Brown (2006), pp. 215–217.

  49. 49.

    Joseph Kanyabashi v. Prosecutor, ICTR-96-15-A, Decision on the Defence Motion for Interlocutory Appeal on the Jurisdiction of Trial Chamber I, Dissenting Opinion of Judge Shahabuddeen (3 June 1999), p. 17 (references omitted).

  50. 50.

    Abaclat and others v. The Argentine Republic, ICSID Case No. ARB/07/5, Decision on Jurisdiction and Admissibility (4 August 2011), para. 521; United Parcel Service of America Inc v. Government of Canada, UNCITRAL ad hoc arbitration, Decision of the Tribunal on Petitions for Intervention and Participation as Amici Curiae (17 October 2001), para. 38.

  51. 51.

    Ruiz Fabri (2016).

  52. 52.

    Brown (2006), pp. 239–242.

  53. 53.

    Lauterpacht (1958), pp. 5–6.

  54. 54.

    Roberts (2013), pp. 61–62.

  55. 55.

    See also Grant Cohen et al. (2018), pp. 15–16.

  56. 56.

    Shany (2014), p. 19.

  57. 57.

    Understanding on Rules and Procedures Governing the Settlement of Disputes, Annex 2 to the Agreement Establishing the World Trade Organization, 15 April 1994, in force 1 January 1995, 1869 UNTS 401, art. 3(2) (emphasis added).

  58. 58.

    Comprehensive Economic and Trade Agreement Between Canada and the European Union, 30 October 2016, not in force, art. 29.17; EU-Vietnam Investment Protection Agreement, 30 June 2019, not in force, art. 3.21; EU-Vietnam Free Trade Agreement, 30 June 2019, in force 1 August 2020, art. 15.21; EU-Singapore Investment Protection Agreement, 19 October 2018, not in force, art. 3.42; EU-Singapore Free Trade Agreement, 19 October 2018, in force 21 November 2019, art. 14.18.

  59. 59.

    Some authors argue that the law-making function of ICTs is better achieved through competition in persuasiveness rather than accepting previous decisions as settled rules. Sourgens (2014), pp. 223–245.

  60. 60.

    Thomas (2005), pp. 141–144. Although it can be theorised that the development of international law and the use of precedents are different topics, they are inherently related in practice, insofar as precedents serve as a sort of a vehicle for the development of international law. See Shahabuddeen (1996), pp. 67–96.

  61. 61.

    Alter et al. (2019), p. 451; Romano (2011), pp. 253–254; Amerasinghe (2015), p. 689. But cf., for the argument that dependent tribunals are more successful, Posner and Yoo (2005), and for its rebuttal, Helfer and Slaughter (2005).

  62. 62.

    CJEU, Opinion 1/17, Comprehensive Economic and Trade Agreement between Canada, of the one part, and the European Union and its Member States, of the other part (CETA), ECLI:EU:C:2019:341, para. 202.

  63. 63.

    Ali Osman Özmen v. Turkey, App. No. 42969/04 (ECtHR, 5 July 2016), paras. 85, 87.

  64. 64.

    Alter et al. (2019), p. 451. See also Romano (2011), pp. 254, 261–263.

  65. 65.

    Staton and Moore (2011), p. 559.

  66. 66.

    See also Brinks and Blass (2017), pp. 299, 306–311; and, for the establishment of independence of the WTO Appellate Body, Howse (2016).

  67. 67.

    CJEU, Opinion 1/17, Comprehensive Economic and Trade Agreement between Canada, of the one part, and the European Union and its Member States, of the other part (CETA), ECLI:EU:C:2019:341, para. 202.

  68. 68.

    CJEU, Opinion 1/17, Comprehensive Economic and Trade Agreement between Canada, of the one part, and the European Union and its Member States, of the other part (CETA), ECLI:EU:C:2019:341, para. 202.

  69. 69.

    Cleis (2017), pp. 20–21.

  70. 70.

    Brinks and Blass (2017), p. 308.

  71. 71.

    Cleis (2017), p. 22.

  72. 72.

    Ali Osman Özmen v. Turkey, App. No. 42969/04 (ECtHR, 5 July 2016), paras. 85, 87.

  73. 73.

    CJEU, Opinion 1/17, Comprehensive Economic and Trade Agreement between Canada, of the one part, and the European Union and its Member States, of the other part (CETA), ECLI:EU:C:2019:341, para. 203.

  74. 74.

    Cleis (2017), p. 21.

  75. 75.

    See Blue Bank International & Trust (Barbados) Ltd. v. Bolivarian Republic of Venezuela, ICSID Case No. ARB/12/20, Decision on the Parties’ Proposals to Disqualify a Majority of the Tribunal (12 November 2013). paras. 59–60 (“Articles 57 and 14(1) of the ICSID Convention do not require proof of actual dependence or bias; rather it is sufficient to establish the appearance of dependence or bias. … The applicable legal standard is an “objective standard based on a reasonable evaluation of the evidence by a third party”.” [references omitted]).

  76. 76.

    See, for example, Corrado (2009).

  77. 77.

    A and others v. The United Kingdom, App. No. 3455/05 (ECtHR, 19 February 2009), paras. 203–204; Reinprecht v. Austria, App. No. 67175/01 (ECtHR, 15 November 2005), para. 31(b)–(c).

  78. 78.

    CJEU, Opinion 1/17, Comprehensive Economic and Trade Agreement between Canada, of the one part, and the European Union and its Member States, of the other part (CETA), ECLI:EU:C:2019:341, para. 197.

  79. 79.

    Rajah SC (2017).

  80. 80.

    Wälde (2010a, b).

  81. 81.

    UNCITRAL Model Law on International Commercial Arbitration of 1985, with amendments as adopted in 2006, art. 18, https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/19-09955_e_ebook.pdf (last accessed 15 August 2021) (“The parties shall be treated with equality and each party shall be given a full opportunity of presenting his case.”).

  82. 82.

    Through the grounds for non-recognition/enforcement and setting aside/annulment. See Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 10 June 1958, in force 7 June 1959, 330 UNTS 38, art. V(1)(b); UNCITRAL Model Law on International Commercial Arbitration of 1985, with amendments as adopted in 2006, art. 34(2)(a)(ii), https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/19-09955_e_ebook.pdf (last accessed 15 August 2021); Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, 18 March 1965, in force 14 October 1966, 575 UNTS 159, art. 52(1)(d) (“that there has been a serious departure from a fundamental rule of procedure”).

  83. 83.

    Jolowicz (2003).

  84. 84.

    Jolowicz (2003), p. 295.

  85. 85.

    Mrčela (2017), p. 18.

  86. 86.

    Comprehensive Economic and Trade Agreement Between Canada and the European Union, 30 October 2016, not in force, art. 8.44(3)(b).

  87. 87.

    Comprehensive Economic and Trade Agreement Between Canada and the European Union, 30 October 2016, not in force, art. 8.28(7); Joint Committee Decision of 29 January 2021, https://trade.ec.europa.eu/doclib/press/index.cfm?id=2240 (last accessed 15 August 2021).

  88. 88.

    EU-Singapore Investment Protection Agreement, 19 October 2018, not in force, art. 4.1(4)(g).

  89. 89.

    EU-Vietnam Investment Protection Agreement, 30 June 2019, not in force, art. 4.1(5)(b).

  90. 90.

    Comprehensive and Progressive Agreement for Trans-Pacific Partnership, 8 March 2018, in force 30 December 2018, art. 27.2(1)(f).

  91. 91.

    Agreement Between the United States of America, the United Mexican States, and Canada, 30 November 2018 and 10 December 2019, in force 1 July 2020, art 30.2(1)(e).

  92. 92.

    Statute of the International Court of Justice, 26 June 1945, in force 24 October 1945, 3 Bevans 1153, art. 30(1); Convention for the Protection of Human Rights and Fundamental Freedoms, as Amended by Protocols Nos. 11 and 14, 4 November 1950, in force 3 September 1953, Protocol No. 11 in force 1 November 1998, Protocol No. 14 in force 1 June 2010, 213 UNTS 222, art. 25(d). In the ICSID context, the Arbitration Rules are adopted by the Administrative Council which is composed of the representatives of states, but in this scenario the choice of disputing parties is controlling: Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, 18 March 1965, in force 14 October 1966, 575 UNTS 159, arts. 6(1)(c), 44. WTO panels should follow pre-defined procedural rules “unless the panel decides otherwise after consulting the parties to the dispute”, while the Appellate Body draws up its own working procedures: Understanding on Rules and Procedures Governing the Settlement of Disputes, Annex 2 to the Agreement Establishing the World Trade Organization, 15 April 1994, in force 1 January 1995, 1869 UNTS 401, arts. 12(1) and 17(9).

  93. 93.

    Rome Statute of the International Criminal Court, 17 July 1998, in force 1 July 2002, 2187 UNTS 90, art. 51(1).

  94. 94.

    Rome Statute of the International Criminal Court, 17 July 1998, in force 1 July 2002, 2187 UNTS 90, art. 51(3).

  95. 95.

    Cf. Canada Model BIT (2004), art. 27(2), https://investmentpolicy.unctad.org/international-investment-agreements/treaty-files/2820/download (last accessed 15 August 2021) (empowering a commission to supplement arbitral rules).

  96. 96.

    For example, investment arbitral tribunals have been willing to qualify certain jurisdictional rules, such prior negotiation and litigation requirements, as “procedural” and as pertaining to the admissibility of claims, not jurisdiction.

  97. 97.

    The EU and Canada as CETA parties have so far agreed on the code of conduct for adjudicators, the rules on mediation, and the rules on the functioning of the Appellatte Tribunal; available at https://trade.ec.europa.eu/doclib/press/index.cfm?id=2240 (last accessed 15 August 2021).

  98. 98.

    Pope & Talbot Inc v. Government of Canada, UNCITRAL ad hoc arbitration, Award in Respect of Damages (31 May 2002), para. 47 (an interpretation of the NAFTA resembling an amendment). Note that this question is more relevant in multilateral contexts, because in a bilateral relation any agreement between the two sides could amend their treaty.

  99. 99.

    Comprehensive Economic and Trade Agreement Between Canada and the European Union, 30 October 2016, not in force, art. 8.21(1)–(3).

  100. 100.

    Comprehensive Economic and Trade Agreement Between Canada and the European Union, 30 October 2016, not in force, art. 8.21(7).

  101. 101.

    Comprehensive Economic and Trade Agreement Between Canada and the European Union, 30 October 2016, not in force, art. 8.21(4) (“(a) if the measures identified in the notice are exclusively measures of a Member State of the European Union, the Member State shall be the respondent; (b) if the measures identified in the notice include measures of the European Union, the European Union shall be the respondent.”).

  102. 102.

    Comprehensive Economic and Trade Agreement Between Canada and the European Union, 30 October 2016, not in force, art. 8.21(7).

  103. 103.

    EU-Singapore Investment Protection Agreement, 19 October 2018, not in force, art. 3.5(2)–(4).

  104. 104.

    EU-Vietnam Investment Protection Agreement, 30 June 2019, not in force, art. 3.32(2)–(6).

  105. 105.

    CJEU, Case C-284/16, Slowakische Republik v. Achmea BV, ECLI:EU:C:2018:158, paras. 39–60; CJEU, Opinion 1/17, Comprehensive Economic and Trade Agreement between Canada, of the one part, and the European Union and its Member States, of the other part (CETA), ECLI:EU:C:2019:341, para. 132. See also CJEU, Opinion 2/13, Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms, ECLI:EU:C:2014:2454.

  106. 106.

    CJEU, Case C-284/16, Slowakische Republik v. Achmea BV, ECLI:EU:C:2018:158, paras. 33, 35 (“… the autonomy of EU law with respect both to the law of the Member States and to international law is justified by the essential characteristics of the EU and its law, relating in particular to the constitutional structure of the EU and the very nature of that law. EU law is characterised by the fact that it stems from an independent source of law, the Treaties, by its primacy over the laws of the Member States, and by the direct effect of a whole series of provisions which are applicable to their nationals and to the Member States themselves. Those characteristics have given rise to a structured network of principles, rules and mutually interdependent legal relations binding the EU and its Member States reciprocally and binding its Member States to each other … In order to ensure that the specific characteristics and the autonomy of the EU legal order are preserved, the Treaties have established a judicial system intended to ensure consistency and uniformity in the interpretation of EU law …”). For the intra-EU context, see Bjorge (2017).

  107. 107.

    Cf. Statement Submitted by the European Communities to the Secretariat of the Energy Charter Pursuant to Article 26(3)(b)(ii) of the Energy Charter Treaty, fn. 1, https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:31998D0181&from=EN (last accessed 15 August 2021) (stating, “The Communities and the Member States will, if necessary, determine among them who is the respondent party to arbitration proceedings initiated by an Investor of another Contracting Party”, but “[t]his is without prejudice to the right of the investor to initiate proceedings against both the Communities and their Member States”).

  108. 108.

    Bernardini (2017), p. 44.

  109. 109.

    Paulsson (1995), p. 256.

  110. 110.

    See Comprehensive Economic and Trade Agreement Between Canada and the European Union, 30 October 2016, not in force, art. 8.21(6) (“If the European Union or a Member State of the European Union is the respondent, pursuant to paragraph 3 or 4, neither the European Union, nor the Member State of the European Union may assert the inadmissibility of the claim, lack of jurisdiction of the Tribunal or otherwise object to the claim or award on the ground that the respondent was not properly determined pursuant to paragraph 3 or identified on the basis of the application of paragraph 4.”).

  111. 111.

    North American Free Trade Agreement, 17 December 1992, in force 1 January 1994, 32 ILM 289, art. 2001 (establishing the Free Trade Commission); and art. 1131(2) (“An interpretation by the Commission of a provision of this Agreement shall be binding on a Tribunal established under this Section.”).

  112. 112.

    Comprehensive Economic and Trade Agreement Between Canada and the European Union, 30 October 2016, not in force, art. 8.31(3) (investment disputes); and art. 26.1(5)(e) (investment and trade disputes).

  113. 113.

    EU-Singapore Investment Protection Agreement, 19 October 2018, not in force, art. 3.13(3); EU-Singapore Free Trade Agreement, 19 October 2018, in force 21 November 2019, art. 16.1(4)(d).

  114. 114.

    EU-Vietnam Investment Protection Agreement, 30 June 2019, not in force, art. 3.42(5); EU-Vietnam Free Trade Agreement, 30 June 2019, in force 1 August 2020, art. 17.1(4)(d).

  115. 115.

    Comprehensive and Progressive Agreement for Trans-Pacific Partnership, 8 March 2018, in force 30 December 2018, art. 9.25(3) (investment disputes); and art. 27.2(2)(f) (in general).

  116. 116.

    Agreement Between the United States of America, the United Mexican States, and Canada, 30 November 2018 and 10 December 2019, in force 1 July 2020, art. 14.D.9(2) (investment disputes); and art. 30.2(2)(f) (investment and trade disputes).

  117. 117.

    Comprehensive and Progressive Agreement for Trans-Pacific Partnership, 8 March 2018, in force 30 December 2018, art. 9.26; Agreement Between the United States of America, the United Mexican States, and Canada, 30 November 2018 and 10 December 2019, in force 1 July 2020, art. 14.D.10 (both regarding non-conforming measures).

  118. 118.

    Government of India, Office Memorandum of 8 February 2016, para. 12(3) (on file with author). Cf. India Model BIT (2015), art. 24, https://investmentpolicy.unctad.org/international-investment-agreements/treaty-files/3560/download (last accessed 15 August 2021) (providing that tribunals may take into account individual interpretations in the event of a failure to reach a joint interpretation).

  119. 119.

    India Model BIT (2015), art. 24.1, https://investmentpolicy.unctad.org/international-investment-agreements/treaty-files/3560/download (last accessed 15 August 2021).

  120. 120.

    For an overview, see Kaufmann-Kohler (2011), pp. 176–180.

  121. 121.

    US Model BIT (2004), art. 30(3), https://investmentpolicy.unctad.org/international-investment-agreements/treaty-files/2872/download (last accessed 15 August 2021); US Model BIT (2012), art. 30(3), https://investmentpolicy.unctad.org/international-investment-agreements/treaty-files/2870/download (last accessed 15 August 2021); Canada Model BIT (2004), art. 40(2), https://investmentpolicy.unctad.org/international-investment-agreements/treaty-files/2820/download (last accessed 15 August 2021). See further Vandevelde (2009), pp. 195–196 (on the entry of such provision from the NAFTA to the 2004 US Model BIT).

  122. 122.

    ASEAN Comprehensive Investment Agreement, 26 February 2009, in force 24 February 2012, art. 40(3); Agreement Establishing the ASEAN-Australia-New Zealand Free Trade Area, 27 February 2009, in force 1 January 2010, 2672 UNTS 3, c. 11, art. 27(3).

  123. 123.

    Noted in National Grid plc v. The Argentine Republic, UNCITRAL ad hoc arbitration, Decision on Jurisdiction (20 June 2006), para. 85.

  124. 124.

    Government of the Lao People’s Democratic Republic v. Sanum Investments Ltd [2015] SGHC 15, paras. 39–40.

  125. 125.

    Government of India, Office Memorandum of 8 February 2016, paras. 4(3), 8(3), 9(2)(b), 12(1)(c) (on file with author).

  126. 126.

    Kaufmann-Kohler (2011), p. 194.

  127. 127.

    Methymaki and Tzanakopoulos (2016), pp. 160–161; Roberts (2010), p. 182.

  128. 128.

    Cf. Methymaki and Tzanakopoulos (2016), p. 180 (arguing that due process rights of investors cannot take priority over the fact that states are treaty-masters).

  129. 129.

    See text to notes 123–124 above.

  130. 130.

    Particularly in the Indian example, although such action could be permissible in a bilateral context; see text to note 125 above. See also Pope & Talbot Inc v. Government of Canada, UNCITRAL ad hoc arbitration, Award in Respect of Damages (31 May 2002), para. 47 (“For these reasons, were the Tribunal required to make a determination whether the Commission’s action is an interpretation or an amendment, it would choose the latter.” [reference omitted]).

  131. 131.

    Sanum Investments Ltd v. Government of the Lao People’s Democratic Republic [2016] SGCA 57, paras. 101–112 (using the critical date doctrine to reject the reliance on a post-award exchange of interpretive letters); and para. 116 (not allowing a de facto retroactive amendment of the treaty). See also Pope & Talbot Inc v. Government of Canada, UNCITRAL ad hoc arbitration, Award in Respect of Damages (31 May 2002), paras. 48–51; Brower II (2001), pp. 56–57, fn. 71 (not applicable in pending disputes because no one can be judge in his own cause). Cf. Ewing-Chow and Losari (2015), p. 108 (in pending disputes the non-disputing state party safeguards against abuse); Ishikawa (2015), p. 145 (suggesting an inter-state dialogue on the interpretation of treaty provisions after a dispute arises but before the initiation of arbitration).

  132. 132.

    Annex to the Rules of Procedure of the CETA Joint Committee as set out in Decision 001/2018 of the CETA Joint Committee of 26 September 2018, para. 1, https://trade.ec.europa.eu/doclib/press/index.cfm?id=2240 (last accessed 15 August 2021).

  133. 133.

    Annex to the Rules of Procedure of the CETA Joint Committee as set out in Decision 001/2018 of the CETA Joint Committee of 26 September 2018, para. 3, https://trade.ec.europa.eu/doclib/press/index.cfm?id=2240 (last accessed 15 August 2021).

  134. 134.

    See, for the experience of the European Free Trade Association, Fahner (2021).

  135. 135.

    CJEU, Opinion 1/17, Comprehensive Economic and Trade Agreement between Canada, of the one part, and the European Union and its Member States, of the other part (CETA), ECLI:EU:C:2019:341, paras. 233–234.

  136. 136.

    CJEU, Opinion 1/17, Comprehensive Economic and Trade Agreement between Canada, of the one part, and the European Union and its Member States, of the other part (CETA), ECLI:EU:C:2019:341, paras. 236–237.

  137. 137.

    Para. 6 (emphasis added) of the preamble of the Decision of 29 January 2021 adopting the Annex to the Rules of Procedure of the CETA Joint Committee as set out in Decision 001/2018 of the CETA Joint Committee of 26 September 2018, https://trade.ec.europa.eu/doclib/press/index.cfm?id=2240 (last accessed 15 August 2021).

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    Relja Radović

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Radović, R. (2021). The Dejudicialization of International Economic Law. In: Bäumler, J., et al. European Yearbook of International Economic Law 2021. European Yearbook of International Economic Law, vol 12. Springer, Cham. https://doi.org/10.1007/8165_2021_71

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