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- Title
FAILED BOUNDARIES: THE NEAR-PERFECT CORRELATION BETWEEN STATE-TO-STATE WTO CLAIMS AND PRIVATE PARTY INVESTMENT RIGHTS.
- Authors
Afilalo, Ari
- Abstract
This project is the first empirical examination of WTO filings to determine if a private party could bring an action for damages arising under the same core of operative facts pursuant to a bilateral investment treaty. This Article reviews all national treatment, most favored nation, quantitative restrictions, TBT, and SPS filings. After exploring the doctrinal and theoretical reasons for the trade/investment tension, it analyzes those trade filings under a model investment treaty applied in light of decided cases. This Article classifies the filings into "Positive," "Potentially Positive," and "Negative" categories. The findings show a near perfect correlation between trade and investment. These findings are highly significant not only because this is the first empirical study of its kind, but also because they suggest that private parties that relied on liberalized trade laws to invest across borders would have private causes of action for damages for protectionist measures that violate international economic law. Trade has traditionally been the domain of state-to-state dispute resolution, where states often operate based on rational choice, selective determinations of which matters to prosecute. Shifting trade litigation to the private party cause of action model would fundamentally alter sovereign immunity and the balance of power between private parties--in particular, large multinational corporations--and host jurisdictions.
- Subjects
WORLD Trade Organization; INDIVIDUAL investors; INVESTMENT treaties; STATISTICAL correlation; INTERNATIONAL economic relations -- Law &; legislation
- Publication
Emory International Law Review, 2018, Vol 32, Issue 4, p467
- ISSN
1052-2840
- Publication type
Article