Revisiting NGO Participation in WTO and Investment Dispute Settlement: From Procedural Arguments to (Substantive) Public Interest Considerations

Abstract

SummaryA nuanced analysis of relevant decisions suggests that some investment dispute settlement tribunals have gone beyond the World Trade Organizations (WTO) largely procedural approach to non-governmental organization (NGO) participation in their proceedings and have adopted a relatively more substantive approach. This article suggests that this difference of approach stems from three characteristic differences between international trade and foreign investment — the political economy of the international trade and foreign investment orders, the substantive effects of trade and investment activities, and their dispute settlement mechanisms. However, these general differences are by themselves insufficient to justify excluding a substantive public interest approach to NGO participation at the WTO, especially in view of the fact that WTO tribunals have conceded limited participatory privileges to these non-state actors.