Epilogue: 'Convergence' is a Many-Splendored Thing

Abstract

This essay is a closing comment to a multi-authored collection of book chapters that explore the extent to which the adjudication of trade and investment disputes demonstrates that the respective regimes are ‘converging.’ It critically examines the scholarship, supported by many opponents of the ‘fragmentation’ of international law, that WTO and investor-state case law is becoming more harmonious procedurally and substantively. The essay urges caution in that respect. The choice between convergence or divergence is not a simple dichotomy subject to a simple ‘progressive’ conclusion in favor of the former. On the contrary, as is suggested by the nuanced essays in the book as well as empirical studies of the use of WTO case law in investor-state arbitrations, whether any particular ruling is an example of either convergence or divergence is a matter of perspective. The essay also considers why studies of the extent to which investor-state arbitrators cite to WTO case law are not conclusive on the question. Finally, the essay examines a recent WTO panel ruling, involving Ukraine’s claim against Russia, that interprets, for the first time, the GATT’s essential security exception (Art. XX) -- an exception that is becoming more common in contemporary international investment agreements. It contends that this important WTO ruling might be seen as evidence of ‘converging’ trade-investment law in only some respects. The essay concludes that the differing structures, litigants, and goals of the two forms of dispute settlement impose limits on the prospects of ‘converging’ interpretations,