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The Relative Success of WTO Dispute Settlement and What Planet Would the EU Investment Court System Be On? A Rejoinder to AJIL Unbound Comments

Part of: Joost Pauwelyn, “The Rule of Law Without the Rule of Lawyers? Why Investment Arbitrators are from Mars, Trade Adjudicators are from Venus”

Published online by Cambridge University Press:  20 January 2017

Joost Pauwelyn
Joost Pauwelyn*
Affiliation:
Graduate Institute of International and Development Studies, Geneva, Georgetown University Law Center
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I am extremely grateful, and humbled, by the wealth of comments received on my AJIL article through this AJIL Unbound Symposium. One of the many points I take away from these reactions is, indeed, that my analysis offers a snapshot and that many of the critiques now leveled against Investor-State Dispute Settlement (ISDS) are, in Catherine Rogers’s words, “effectively recycled versions of criticisms that were originally leveled against the WTO and its decision-makers.” (Freya Baetens makes a similar point.)

In this rejoinder, I would only like to make two points. Firstly, many commentators seem to think that in this article I took the normative position that World Trade Organization (WTO) dispute settlement is “better” than ISDS. Although I did point to the current discrepancy in public perception of the respective regimes, I purposefully avoided expressing any personal, normative position on one being “better” than the other (but apparently not explicitly enough).

Type
Symposium on Joost Pauwelyn, “The Rule of Law Without the Rule of Lawyers? Why Investment Arbitrators are from Mars, Trade Adjudicators are from Venus”
Information
AJIL Unbound , Volume 109 , 2015 , pp. 316 - 318
Copyright
Copyright © American Society of International Law 2015

References

1 Pauwelyn, Joost, The Rule of Law Without the Rule of Lawyers? Why Investment Arbitrators are from Mars, Trade Adjudicators from Venus, 109 AJIL 761, 761 (2015)Google Scholar.

2 Rogers, Catherine A., Apparent Dichotomies, Covert Similarities: A Response to Joost Pauwelyn, 109 AJIL Unbound 294, 298 (2016)Google Scholar.

3 Baetens, Freya, The Rule of Law or the Perception of the Beholder? Why Investment Arbitrators are under Fire and Trade Adjudicators are not: A Response to Joost Pauwelyn, 109 AJIL Unbound 302, 302-303 (2016)CrossRefGoogle Scholar.

4 Sacerdoti, Giorgio, Panelists, Arbitrators, Judges: A Response to Joost Pauwelyn, 109 AJIL Unbound 283, 287 (2016)CrossRefGoogle Scholar.

5 McRae, Donald, Introduction to Symposium on Joost Pauwelyn, “The Rule of Law Without the Rule ff Lawyers? Why Investment Arbitrators are from Mars, Trade Adjudicators are from Venus”, 109 AJIL Unbound 277, 278 (2016)CrossRefGoogle Scholar (emphasis added).

6 Rogers, supra note 2, at 301.

7 Baetens, supra note 3, at 308.

8 Sacerdoti, supra note 4, at 285.

9 Marceau, Gabrielle et al., Judging from Venus: A Response to Joost Pauwelyn, 109 AJIL Unbound 288, 288-289 (2016)CrossRefGoogle Scholar.

10 Howse, Robert, Venus, Mars, and Brussels: Legitimacy and Dispute Settlement Culture in Investment Law and WTO Law: A Response to Joost Pauwelyn, 109 AJIL Unbound 309, 314 (2016)Google Scholar.

11 Id. at 310.

12 Rogers, supra note 2, at 299.

13 Sacerdoti, supra note 4, at 287.