Talking Across the Boundaries: Engagement between the WTO and ISDS Adjudicators

Abstract

Research in this paper focuses on three basic but imperative questions. The first question concerns in what pattern ISDS panels have been using the WTO acquis. Part I thus offers a recount of the circumstances in the case law where a number of arbitral panels have engaged with the WTO norms and adjudicatory decisions. To date, the ISDS tribunals have used WTO acquis mainly under three circumstances where it respectively serves as interpretative aid, source of authority/inspiration and adjudicatory parameters. Nevertheless, the impact the invoked WTO acquis has generated upon the pending proceedings varies. The second part investigates the reasons why ISDS tribunals have used the WTO acquis in the current pattern. This part puts forward and investigates four major reasons that explain the current module of engagement, namely, the change of model in international business, the achievement of WTO dispute settlement system, the complex inter-regime relationship between trade and investment and the shared ideology of jurists between the two regimes. The last question to be address also constitutes part of the conclusions of the paper: what are the implication and consequence of the ongoing engaging activities between trade and investment adjudicators? This part put forward two major arguments. First of all, the often suspected adjudicatory chaos, associated with the plurality and proliferation of international courts and tribunals, is more perceived than real. Discrete judicial decisions should be carefully analysed rather than being blindly redeemed as threat to system coherence. Second, cross-jurisdictional engagement among judicial actors has injected positive developments in pursuit of adjudicatory legitimacy and credibility, arguably serving as an agent of harmonization of international legal system, which consists of a number of specialised, co-existing, discrete but yet non-self-contained sub-regimes.