Good Faith in Parallel Trade and Investment Disputes

Abstract

This chapter assesses the role of good faith in managing parallel investment and trade disputes. It considers the jurisdictional and substantive overlap in trade and investment regimes that give rise to parallel disputes, and the normative considerations such as double remedies and conflicting outcomes that inform why parallel disputes may need to be proactively managed by adjudicatory bodies in certain circumstances. The principle of good faith has provided the conceptual framework for the development of a number of legal tools to manage parallel disputes including lis pendens, estoppel, and abuse of rights, and this chapter evaluates the extent to which they may be deployed in trade and investment regimes. While finding that these tools are available to varying degrees within both trade and investment regimes, this chapter also identifies a margin of uncertainty in their scope and application and concludes that they are insufficient to manage disputes that originate across the two regimes.