Book contents
- Frontmatter
- Contents
- Contributors
- List of figures
- List of tables
- List of abbreviations
- Preface
- PART 1 Beyond regulatory control and multilateral flexibility: Gains from a cosmopolitan GATS
- PART 2 Unexplored economic, political and judicial dimensions of GATS
- PART 3 The limits of request–offer negotiations: Plurilateral and alternative approaches to services liberalisation
- PART 4 GATS case law: A first assessment
- 10 Lessons learned from litigating GATS disputes: Mexico – Telecoms
- 11 From Periodicals to Gambling: A review of systemic issues addressed by WTO adjudicatory bodies under the GATS
- 12 Specificities of WTO dispute settlement in services cases
- 13 Can foreign investors in services benefit from WTO dispute settlement? Legal standing and remedies in WTO and international arbitration
- PART 5 Market access, national treatment and domestic regulation
- PART 6 Unfinished business: Safeguard and subsidy disciplines for services
- PART 7 Challenges to the scope of GATS and cosmopolitan governance in services trade
- PART 8 Conclusion
- Index
- References
13 - Can foreign investors in services benefit from WTO dispute settlement? Legal standing and remedies in WTO and international arbitration
from PART 4 - GATS case law: A first assessment
Published online by Cambridge University Press: 03 September 2009
Book contents
- Frontmatter
- Contents
- Contributors
- List of figures
- List of tables
- List of abbreviations
- Preface
- PART 1 Beyond regulatory control and multilateral flexibility: Gains from a cosmopolitan GATS
- PART 2 Unexplored economic, political and judicial dimensions of GATS
- PART 3 The limits of request–offer negotiations: Plurilateral and alternative approaches to services liberalisation
- PART 4 GATS case law: A first assessment
- 10 Lessons learned from litigating GATS disputes: Mexico – Telecoms
- 11 From Periodicals to Gambling: A review of systemic issues addressed by WTO adjudicatory bodies under the GATS
- 12 Specificities of WTO dispute settlement in services cases
- 13 Can foreign investors in services benefit from WTO dispute settlement? Legal standing and remedies in WTO and international arbitration
- PART 5 Market access, national treatment and domestic regulation
- PART 6 Unfinished business: Safeguard and subsidy disciplines for services
- PART 7 Challenges to the scope of GATS and cosmopolitan governance in services trade
- PART 8 Conclusion
- Index
- References
Summary
Introduction
Disputes involving trade and investment in services are a rarity in the WTO. Up to now, the WTO dispute settlement mechanism (DSM) has addressed over 130 cases, of which only a handful concerned services. Furthermore, only two disputes were true General Agreement on Trade in Services (GATS) cases, as the other three were primarily ‘goods’ cases, with only a secondary services dimension concerning the disciplines on the importation of goods – bananas and cars.
In addition, investment in services has received minimal consideration in these disputes. Of the two GATS cases, only Mexico – Telecom paid some attention to trade in services through ‘commercial presence’ (or ‘mode 3’, GATS jargon for ‘foreign investment’), but the dispute concerned mostly cross-border trade. The three goods cases involving the GATS also said little about the disciplines concerning investment in services, although some clarifications can be found in the bananas case.
It is possible to identify three reasons that may explain, at least partially, the marginal attention that WTO dispute settlement has paid to investment in services.
First, multilateral commitments in services, like tariff bindings in goods, feature an important level of ‘water’ between bound policies and applied measures. That is, domestic policies towards foreign services suppliers are commonly more liberal than those to which Members have committed under GATS rules. Indeed, the GATS has been accused of providing for very little real liberalisation.
- Type
- Chapter
- Information
- GATS and the Regulation of International Trade in ServicesWorld Trade Forum, pp. 296 - 324Publisher: Cambridge University PressPrint publication year: 2008
References
, ‘Behind the Curtain of Intergovernmental Trade Disputes’, paper presented at the Conference ‘Changing Patterns of Authority in the Global Political Economy’, organised by the Univeristy of Tübingen, in Tübingen, Germany, 14–16 October 2004.
and , ‘Rules of Origin in Services – A Review of Current Practice’, mimeo, 2004.
and , ‘Why Can't North American Free Trade Agreement Chapter 11 be More Like the World Trade Organization?’, Transnational Dispute Management 1(2) (2003).Google Scholar
, ‘Specificities of World Trade Organization Dispute Settlement in Services Cases’, Chapter 12 in this volume.
and , ‘Rules of Origin in Services: A Case Study of Five Association of Southeast Asian Nations Countries’, Chapter 5 in this volume.
and , ‘Arbitrating over bilateral investment treaty claims’, The National Law Journal (15 September 2003).Google Scholar
, ‘Enforcement of Arbitral Awards – The Next “Noga” Episode’, New York Law Journal (3 April 2003).Google Scholar
(2003), ‘Do Bilateral Investment Treaties Attract foreign direct investment? Only a bit… and they could bite’, World Bank Policy Research Working Paper, document number WPS3121, available at econ.worldbank.org (8/2006).
, 2002, ‘Final Report on Public Policy as a Bar to Enforcement of International Arbitration Awards’, reproduced in Transnational Dispute Management 1(1) (February 2004).Google Scholar
, ‘Enhancing Security and Predictability for Private Business Operators under the Dispute Settlement System of the World Trade Organization’, Journal of World Trade 34(6) (2000).Google Scholar
, ‘Depoliticization of International Dispute Settlement. A Comparison of the Dispute Settlement Provisions of the World Trade Organization and the Energy Charter Treaty’, Journal of World Investment 3(5) (2002).Google Scholar
, ‘The General Agreement on Tariffs and Trade/World Trade Organization Dispute Settlement Mechanism: an Introduction’, in , (ed.), Remedies in International Law. The Institutional Dilemma, (Oxford: Hart Publishing, 1998).Google Scholar
, ‘The Dispute Settlement Rules of the North American Free Trade Agreement: a Thematic Comparison with the Dispute Settlement Rules of the World Trade Organization’, in , (ed.), International Trade Law and the General Agreement on Tariffs and Trade/World Trade Organization Dispute Settlement System (The Hague: Kluwer Law International, 1997).Google Scholar
and , ‘Legal Means to Protect Private Parties’ Interests in the World Trade Organization. The Case of the EC New Trade Barrier Regulation’, Journal of International Economic Law 1(3) (1998), p. 407.CrossRefGoogle Scholar
, 2006, ‘World Trade Organization Disciplines on Foreign Investment: Wasn't the General Agreement on Trade in Services about trade in services?’, Master thesis presented at the Università degli Studi di Bologna, available at www.nccr-trade.ch/ip/ip8/publications.html.
, ‘World Trade Organization Dispute Settlement in Services: Procedural and Substantive Aspects’, in , (ed.), International Trade Law and the General Agreement on Tariffs and Trade/World Trade Organization Dispute Settlement System (The Hague: Kluwer Law International, 1997).Google Scholar
and , ‘Do Bilateral Investment Treaties Increase Foreign Direct Investment to Developing Countries?’, World Development 33(10) (2005), p. 1567.CrossRefGoogle Scholar
and , Dispute Settlement in the World Trade Organization (Cambridge University Press, 2004).CrossRefGoogle Scholar
, The General Agreement on Tariffs and Trade/World Trade Organization Dispute Settlement System. International Law, International Organizations and Dispute Settlement (The Hague: Kluwer Law International, 1997).Google Scholar
and , ‘Foreign Direct Investment and the Business Environment in Developing Countries: The Impact of Bilateral Investment Treaties’ (2 May 2005), Yale Law & Economics Research Paper No. 293. Available at http://ssrn.com/abstract=557121.
, ‘Must the Vistorious Investor-Claimant Relinquish Title to Expropriated Property?’, Journal of World Investment 4(3) (2003).Google Scholar
, ‘Capacity to Sue and be Sued under World Trade Organization Law’, World Trade Review 3(1) (2004).CrossRefGoogle Scholar
, ‘Travelling the bilateral investment treaty Route. Of Waiting Periods, Umbrella Clauses and Forks in the Road’, Journal of World Investment & Trade 5(2) (2004).Google Scholar
,‘Calvo's Grandchildren: The Return of Local Remedies in Investment Arbitration’, The Law and Practice of International Courts and Tribunals 4(1) (2005).CrossRefGoogle Scholar
, Defending Interests. Public-Private Partnerships in World Trade Organization Litigation, (Washington, DC: Brookings Institution Press, 2003).Google Scholar
, ‘Arbitration Before the International Centre for Settlement of Investment Disputes’, Transnational Dispute Management 1(1) (2004).Google Scholar
, 1999, ‘Scope and Definition’, UN Conference on Trade and Development Series on issues in international investment agreements, United Nations, New York and Geneva.
, 2003a, ‘World Investment Report 2003 – foreign direct investment Policies for Development: National and International Perspectives’, United Nations, New York and Geneva.
, 2003b, ‘Dispute Settlement. Investor-State’, UN Conference on Trade and Development Series on issues in international investment agreements, United Nations, New York and Geneva.
, 2003c, ‘Course on Dispute Settlement – International Centre for the Settlement of Investment Disputes. 2.1 Overview’, United Nations, New York and Geneva.
, 2003d, ‘Course on Dispute Settlement – International Centre for the Settlement of Investment Disputes. 2.8 Post-Award Remedies and Procedures’, United Nations, New York and Geneva.
, 2003e, ‘Course on Dispute Settlement – International Centre for the Settlement of Investment Disputes. 2.9 Binding Force and Enforcement’, United Nations, New York and Geneva.
, 2003f, ‘Course on Dispute Settlement – World Trade Organization. 3.13 GATS’, United Nations, New York and Geneva.
, 2003g, ‘Dispute Settlement: State-State’, UN Conference on Trade and Development Series on issues in international investment agreements, United Nations, New York and Geneva.
, 2004, ‘World Investment Report 2004 – The Shift Towards Services’, United Nations, New York and Geneva.
, 2005a, ‘Latest Developments in Investor-State Dispute Settlement’, international investment agreement MONITOR No. 4 (2005), document number UN Conference on Trade and Development/WEB/ITE/IIT/2005/2.
, 2005b, ‘Investor-State Disputes Arising from Investment Treaties: A Review’, UN Conference on Trade and Development Series on International Investment Policies for Development, United Nations, New York and Geneva.
, 2005c, ‘Investor–State Disputes and Policy Implications’, Note by UN Conference on Trade and Development Secretariat, document number TD/B/COM.2/62, available at www.unctad.org/en/docs/c2d62_en.pdf (8/2006).
, 2006, ‘Preserving Flexibility in IIAs: The Use of Reservations’, UN Conference on Trade and Development Series on International Investment Policies for Development, United Nations, New York and Geneva.
, ‘The Use of Investor-State Arbitration under Bilateral Investment Treaties to Seek Relief for Breaches of World Trade Organization Law’, Journal of International Economic Law 6(2) (2003).CrossRefGoogle Scholar
, and , ‘Navigating Through Investor–State Arbitrations – An Overview of Bilateral Investment Treaty Claims’, Dispute Resolution Journal 59(1) (Feb.–April 2004).Google Scholar
, ‘Dispute Settlement Under the General Agreement on Trade in Services’, in and , (eds.), Dispute Resolution in the World Trade Organization (London: Cameron May, 1998).Google Scholar
, ‘World Trade Organization Dispute Settlement Procedures Relating to the GATS’, Journal of International Economic Law (1999), pp. 295–346.CrossRefGoogle Scholar
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