Go On! Adjudicating International Trade and Investment Disputes: Between Interaction and Isolation

The PluriCourts Centre of Excellence at the University of Oslo will host a two day conference on international trade and investment disputes.

The conference will take place on Thursday and Friday, August 25-26 at the Faculty of Law, University of Oslo, Norway.

The webpage with the final programme and registration information is available here.

For more information, please contact: Daniel Behn, PluriCourts (d.f.behn@jus.uio.no)

 

 

The conference will focus on the relationship, interactions and comparisons between the international trade and investment regimes in the context of adjudication of disputes.

 

The conference will present research from the disciplines of law and political science relating to three themes:

 

1) the new mega-regionals

2) comparisons and practices

3) cross-fertilization and learning

 

Historically, the global regulation of international trade and investment relations have been closely interrelated; but in the post-war period, international trade law and international investment law developed on largely divergent paths. While international trade regulation has culminated in a multilateral regime with a permanent dispute settlement mechanism, the international regulation of foreign direct investment is primarily governed by 3500 essentially bilateral treaty relationships calling for ad hoc investor – state arbitration potentially to be hosted by a variety of international institutions. Despite these seemingly distinct structures, there is a recent trend that some say signal a move towards regime convergence: most clearly seen in the rise of mega-regional free trade agreements (FTAs) with investment chapters.

 

This potential convergence may be deceiving, however. The investment chapters of FTAs remain separate from the rest of the agreements and provide for distinct rules and procedures on dispute settlement. Moreover, issues of overlap between trade chapters and investment chapters have not been resolved, which means that the same case could possibly be raised simultaneously in two separate disputes under the same FTA. Legal disputes based on investment chapters in FTAs to date (ie under the NAFTA and DR-CAFTA) appear to interpret the investment protection chapters as standalone agreements with little or no reference to other sections of the FTAs.

Despite the limitations to integration that this new generation of trade and investment agreements may represent, there are other areas of interaction between the trade and investment regimes that could provide better evidence of a gradual move towards cohesion. This conference will look at the development of the new mega-regionals, but also the ways (or lack thereof) that the trade and investment regimes share practices and cross-fertilize. Below you will find the conference programme.

 

Conference program:

 

Adjudicating international trade and investment disputes: between interaction and isolation

 

Thursday, August 25

 

9:00 – 9:15

Welcome and introduction to the conference

 

Daniel Behn, Ole Kristian Fauchald, Geir Ulfstein and Michelle Zang, PluriCourts

 

9:15 – 10:30

The new mega-regionals

 

The mega-regionals: innovation versus imitation?

Manfred Elsig, World Trade Institute

 

Envisioning a model role for mega-regionals in international economic law

Tania Voon, University of Melbourne

 

10:45 – 12:30

The new mega-regionals – paper presentations

Chair and discussant: Jose Alvarez, New York University

 

International trade law in China: from paternalism to partnership

Greg Shaffer, University of California – Irvine

 

The scope of investment protection under newly negotiated FTAs: piecemeal reaction or serious reassessment?

Kate Parlett, 20 Essex Street

 

Participatory aspects of investor-state dispute settlement in the EU ‘new wave’ trade agreements

Joanna Jemielniak and Gunes Ünüvar, University of Copenhagen

 

The creeping multilateralization of investment dispute resolution under EU trade and investment agreements

Hannes Lenk, University of Gothenburg

 

1:15 – 3:00

The new investment court proposal – panel debate and discussion

Moderators: Daniel Behn and Malcolm Langford, PluriCourts

 

Completion of the legal analysis by the WTO appellate body – lessons for an appeal tribunal of an international investment court

Nicholas Lamp, Queens University

 

The Appellate Body of the WTO: obiter dicta, judicial economy, interpretation and the ban on adding obligations or diminishing rights

Lothar Ehring, DG Trade

 

Debate: Debating the pros and cons of the new EU investment court proposal

Julie Maupin, Max Planck Institute

Nikos Lavranos, EFILA

 

3:15 – 4:00

Cross-fertilization and learning

 

Converging divergences: a common law of international economic relations

Sunjoon Cho, Chicago-Kent College of Law

 

4:15 – 6:00

Cross-fertilization and learning – paper presentations

Chair and discussant: Laurence Boisson de Chazournes, University of Geneva

 

Cross-fertilization between the international trade and investment regimes

Markus Wagner, University of Warwick

 

Judicial interaction between trade and investment adjudication: theoretical foundation and empirical constraints

Michelle Zang, PluriCourts

 

Entry rights and investment in services: convergence between regimes?

Murilo Otavio Lubambo de Melo, University College London

 

The driving forces of the convergence of WTO dispute settlement mechanism and international investment arbitration

Fenghua Li, Renmin University of China

 

7:00

Dinner for speakers

Introduction: Geir Ulfstein, PluriCourts

 

The multiplicity of international courts and tribunals: factors of convergence and divergence

Georges Abi-Saab, Graduate Institute

 

Friday, August 26

 

9:15 – 10:30

Comparisons and practices

 

Comparative judicial practices: comparing dissent practices in the trade and investment regimes

Jeff Dunoff and Mark Pollack, Temple University

 

Comparing the East African and Caribbean Courts of Justice: explaining judicial behavior

Theresa Squatrito, PluriCourts

 

10:45 – 12:30

Comparisons and practices – paper presentations

Chair and discussant: J. Christopher Thomas, National University of Singapore

 

Do different treaty purposes matter for the interpretation of WTO agreements and investment agreements

Graham Cook, World Trade Organization

 

The use of public international law sources in WTO dispute settlement (with a side glance to the approach taken by investment tribunals)

Vitaliy Pogoretskyy, Advisory Centre on WTO law

 

Approaches to external precedent: invocation of international decisions in investment arbitration and WTO dispute settlement

Niccolo Ridi, King’s College London

 

Sharing interpretive functions between states and tribunals

Yuliya Chernykh, University of Oslo

 

1:30 – 2:45 Roundtable discussion – between isolation and interaction?

Moderator: Ole Kristian Fauchald, PluriCourts

 

Georges Abi-Saab, Graduate Institute

Jose Alvarez, New York University

Laurence Boisson de Chazournes, University of Geneva

Giorgio Sacerdoti, Bocconi University

  1. Christopher Thomas, National University of Singapore

 

3:00 – 4:45

Comparisons and practices – paper presentations

Chair and discussant: Giorgio Sacerdoti, Bocconi University

 

Regime shifting of IPR law-making and enforcement to international investment law

James Gathii and Cynthia Ho, Loyola University Chicago

 

On the interchangeability of trade and investment disputes: potential risks and opportunities

Andreas Ziegler, University of Lausanne

 

Adjudicating performance requirements disputes: blurring lines of trade and investment dispute settlement

Julien Chaisse, Chinese University of Hong Kong

 

Can a court’s function adequately explain the exercise of inherent powers: a comparison of the powers of the WTO Appellate Body and ICSID tribunals

Ridhi Kabra, University of Cambridge

 

Conference Organizers:

Daniel Behn, Postdoctoral Researcher, PluriCourts

Ole Kristian Fauchald, Professor of Law, PluriCourts

Geir Ulfstein, Professor of Law and Co-Director, PluriCourts

Michelle Zang, Postdoctoral Researcher, PluriCourts

 

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