Can Foreign Investors in Services Benefit from WTO Dispute Settlement? Legal Standing and Remedies in WTO and International Arbitration

Abstract

Disputes involving trade and investment in services are a rarity in the WTO. Up to now, the WTO dispute settlement mechanism (DSM) has addressed over 130 cases, of which a handful concerned trade and investment in services. It is possible to identify three relevant reasons that may explain, at least to some extent, the marginal attention that WTO dispute settlement has needed to pay to investment in services.This study attempts to explore two aspects of international disputes in investment in services. In a first part, it focuses on the international agreements granting standing for private parties in international dispute settlement procedure. With regard to WTO dispute settlement mechanism, the study attempts to explore how the disciplines of the Understanding on Dispute Settlement Procedures (DSU) together with the disciplines adopted in the GATS relate to foreign investors in services. It also addressed whether or not and how private parties are involved in WTO dispute settlement procedures. A second part of the study addresses the remedies Investor-State arbitration on the one hand and WTO dispute settlement mechanism on the other hand offers to resolve an investment-in-services dispute. Attention is drawn to the implications of these different remedies for foreign investors in services. Ultimately, the study attempts to answer the question of whether WTO dispute settlement procedures could become a valid alternative for investor-in-services - State dispute settlement.