The schizophrenia of countermeasures ininternational economic law: the case of the ASEAN Comprehensive Investment Agreement

Abstract

© Cambridge University Press 2015. The interrelated operation of different regimes of international economic law (IEL) may involve the presence of mutually contradictory or inconsistent elements.1 It would not be unreasonable to expect a further sharpening of these considerations during and after crises. This chapter addresses a tangle of rules, regimes, and paradigms, exploring the limits of the consistency of countermeasures in international economic law, on the basis of a case study taken from the Association of Southeast Asian Nations (ASEAN). The starting point of the discussion on countermeasures is that rules of international law on the issue display considerable tensions, wavering between recognition of their conceptual and practical importance and nothing the structural inevitability of abuse. Kelsen famously considered the presence and effectiveness of countermeasures an appropriate benchmark for evaluating the validity of international law as a legal order; other authors have emphasised the great possibilities for abuse inherent in a regime permitting decentralised breaches of law (even with wrongfulness precluded). In the last decade, elaboration of the law of countermeasures has, somewhat unexpectedly, taken place through adjudication in international economic law. The immortal trio of cases which have shaped the modern law have been supplemented by the reports of the World Trade Organization Dispute Settlement Body (WTO DSB) and by three awards given by investment treaty Tribunals. The twists and pulls of these different regimes - investor-state and inter-state - provide a fascinating case study of the operation of international economic law, permitting an exploration of uncertainties within and between trade and investment regimes, and raising the question of the possibility of certainty at the ‘meta-level’ of legal reasoning. The operation of countermeasures in international economic law has been addressed in legal writings, both regarding the lex specialis countermeasures in WTO law and the general international law countermeasures in investment protection law. Their possible interplay has also been dealt with.