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Legal Convergence and Interpretation of the Regimes of International Trade and Investment Law: Arguing a Sustainable Development Pathway

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Legal Convergence and Interpretation of the Regimes of International Trade and Investment Law: Arguing a Sustainable Development Pathway Legal Convergence and Interpretation of the Regimes of International Trade and Investment Law: Arguing a Sustainable Development Pathway Abubakar Isa Umar This thesis is submitted in fulfillment of the requirements for the award of the degree of Doctor of Philosophy of the University of Portsmouth Faculty of Business and Law Portsmouth Law School University of Portsmouth September 2017 ABSTRACT Elementarily, at least within the business environment, any discussions regarding an economic activity posit international trade and investment to be connected. Even to the discerning economist, businessman or policy maker, transfer of goods from one point to the other, provisions of services and direct investment ought to, rationally, be covered in one and the same agreement. However, this has not been possible under international law despite evident historical reasons approving such. International law manages trade and investment independently of each other. The separation of trade and investment has both historical and economic undertones that eventually led to the development of bifurcation in the legal regimes that regulate them. Though some commentators argued that the objectives of the two regimes are different, reality dictates otherwise, as both are seen to be ultimately deeply concerned with efficiency and the liberalization of economic activities; as such the investor and/or trader are not oblivious of the protections provided by the regimes of international trade and international investment law. So should the chicken come home to roost? The principle of non-discrimination, which offers the relative substantive standards of treatment, is at the heart of international economic law and is present in both regimes but has, at the same time, been interpreted and applied incoherently and inconsistently in both, significantly more in investment law than in trade law. As such, this thesis introduces the concept of sustainable development as a legal concept. The main idea is to see whether both investment treaty and trade tribunals can use it as an intellectual lens to interpret the non-discrimination standards in both regimes, aiming for their future convergence. The thesis traced the evolution of the concept, its scope and application. Flowing from the theme of the discussion, the main findings reached are that by employing the rules of the Vienna Convention on the Law of Treaties, the ii concept of sustainable development can serve as a suitable interpretive tool for international courts and tribunals. iii DECLARATION Whilst registered as a candidate for the above degree, I have not been registered for any other research award. The results and conclusions embodied in this thesis are the work of the named candidate and have not been submitted for any other academic award. Word Count: 67, 009 Abubakar Isa Umar iv Table of Judgments and Decisions International Investment Tribunals’ Decisions/Awards ADF Group Inc. v United States of America, ICSID Case No ARB(AF)/00/1, Award, 9 January 2003 AES Corp v Argentine Republic, ICSID Case No ARB/02/17, Decision on Jurisdiction, 26 April 2005 Amco Asia Corporation v Republic of Indonesia, ICSID Case No ARB/81/1, Annulment Proceedings, May 1986 Archer Daniels Midland Co. and Tate & Lyle Ingredients Americas Inc. v Mexico, ICSID Case No, 12 November 2007 Azurix Corp v Argentine Republic, ICISID Case No ARB/01/12, Final Award, 14 July 2006 Bayindir Insaat Turizm Ticaret Ve Sanayi A.S. v Islamic Republic of Pakistan, ICSID Case No ARB/03/29, Award, 27 August 2009 Cargill, Incorporated v. United Mexican States, ICSID Case No ARB(AF)/05/2, Award 18 September 2009 Champion Trading Company and Others v Arab Republic of Egypt, ICSID Case No ARB/02/9, 29 October 2006 Chevron Corporation and Texaco Petroleum Company v Republic of Ecuador, UNCITRAL/PCA Case No. 2009-23 CME Czech Republic B.V (The Netherlands) v The Czech Republic, Final Award, UNCITRAL, 14 March 2003 CMS v Argentina, Award, ICSID Case No ARB/01/8, May 2005 Compania de Aguas del Aconquija S.A and Vivendi Universal S.A v Argentine Republic, Award, ICSID Case No ARB/97/3, 20 August 2007 v Continental Casualty Co v Argentine Republic, ICSID Case No ARB/03/9, Award, 5 September 2008 Corn Products International, Inc v The United Mexican States, ICSID Case No ARB(AF)04/01, Decision on Responsibility, 15 January 2008 El Paso Energy International Co v Argentine Republic, ICSID Case No ARB/03/14, Decision on Jurisdiction, 27 April 2006 GAMI Investments, Inc. v The Government of the United Mexican States, NAFTA/UNCITRAL, Final Award, 15 November 2004 Glamis Gold v United States, NAFTA, Award, 2009 Genin, Eastern credit Ltd. Inc. and AS Baltoil v Republic of Estonia, ICSID Case No ARB/99/2, Award, 25 June 2001 International Thunderbird Gaming Corporation v United Mexican States, UNCITRAL, Award, 26 January 2006 Lemire v Ukraine, ICSID Case No ARB/06/18, Award, 28 March 2010 LE&E Energy Corp. v Argentine Republic, ICSID Case ARB/02/1, Decision on Liability, 3 October 2006 Loewen Group, Inc. and Raymond L. Loewen v United States of America, ICSID Case No ARB(AF)/98/3, 26 June 2003 Marion Unglaube v Costa Rica, ICSID Case No ARB/08/1, Award, 16 May 2012 Marvin Feldman v Mexico, ICSID Case No ARB(AF)/99/1, Award, 16 December vi 2002 MESA Power Group, LLC v Government of Canada NAFTA, Notice of Intent to Submit a Claim to Arbitration under Section B of Chapter 11 of the North American Free Trade Agreement, 6 July 2011 Metalclad Corporation v The United Mexican States, ICSID Case No ARB(AF)/97/1, 30 August 2000 Methanex Corporation and The United States of America, UNCITRAL/NAFTA, Final Award of the Tribunal on Jurisdiction and Merits, 3 August 2005 Mondev International Ltd v US, ICSID Case No ARB(AF)/99/2 (NAFTA), Award, 11 October 2002 MTD Equity Sdn.Bhd. & MTD Chile S.A. v Chile, ICSID Case No ARB/01/7, May 2004 Neer v Mexico, Opinion, United States – Mexico General Claims Commission, 4, R.I.A.A. 60, 60-66, October 1926 Noble Ventures Inc. v Romania, ICISD Case No ARB/01/11, October 12, 2005 Nykomb Synergetics Technology Holding AB v The Republic of Latvia, Energy Charter Treaty, Arbitration Institute of the Stockholm Chamber of Commerce, 16 December 2003 Occidental Exploration and Production Company v The Republic of Ecuador, UNCITRAL, LCIA Case No UN3467, Final Award, 1 July 2004 vii Patrick Mitchell v Democratic Republic of Congo, ICSID Case No ARB/99/7, Extract of Award, 9 February 2004 Parkerings-Compagniet AS v Republic of Lithunia, ICSID Case No ARB/05/8, Award, 11 September 2007 Pope & Talbot Inc v The Government of Canada, UNCITRAL/NAFTA, Award on the Merits of Phase 2, 10 April 2001 PSEG Global Inc. v Republic of Turkey, ICSID Case No ARB/02/5, Award, 19 January 2007 Saluka Investments BV v Czech Republic, UNCITRAL Arbitration, Partial Award, 17 March 2006 S.D. Myers Inc. v Government of Canada, UNCITRAL/NAFTA, Partial Award, 13 November 2000 Sempra Energy International v Argentine Republic, ICSID Case No ARB/02/16, Award, 28 September 2007 Siemens v Argentina, ICSID Case No ARB/02/8, Award 17 January 2007 Suez, Sociedad general de Aguas de Barcelona SA and Interagua Servicios Integrales de Agua SA V The Argentine Republic, ICSID Case No ARB/03/17, Decision on Jurisdiction, 16 May 2006 Tecnicas Medioambientales TECMED S.A. v The United Mexican States, ICSID Case No ARB(AF)/00/2, Award, 29 May 2003 Total S.A. v Argentine Republic, ICSID Case No ARB/04/01, Decision on Liability, 27 December 2010 viii United Parcel Service of America Inc. v Canada, UNCITRAL/NAFTA, Award on the Merits, 24 May 2007 Waste Management Inc. v United Mexican States, ICSID Case No ARB(AF)/003/, Award, April 2004 GATT/WTO Appellate Board Report, Argentine – Safeguard Measures on Imports of Footwear, WT/DS121/AB/R, adopted 14 December 1991 Appellate Board Report, Canada – Certain Measures Affecting the Automotive Industry, WT/DS139/AB/R, WT/DS142/AB/R, adopted 11 February 2000 Appellate Body Report, Canada - Certain Measures Concerning Periodicals, WT/DS31/AB/R, adopted 30 July 1997, DSR 1997:I, 449 Appellate Body Report, European Communities Measures Concerning Meat and Meat Products (Beef Hormones), WT/DS26/AB/R, QT/DS48/AB/R, adopted 13February 1998, DSSR 1998:I, 335 Appellate Body Report, European Communities – Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/AB/R, adopted 5 April 2001, DSR 2001:VII, 3243 Appellate Body Report, European Communities – Regime for the Importation, Sale and Distribution of Bananas, WT/DS27/AB/R, adopted 25 September 1997, DSR 1997:II, 591 ix Appellate Body Report, Japan – Taxes on Alcoholic Beverages, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/B/R, adopted 1 November 1996, DSR 1996:I, 97 Appellate Board Body, Korea – Definitive Safeguard Measures on Import of Certain Diary Products, WT/DS98/AB/R, adopted 12 January 2000 Appellate Body Report, Korea – Taxes on Alcoholic Beverages, WT/DS75/AB/R, WT/DS84/AB/R, adopted 17 February 1999, DSR 1999:I, 3 Appellate Body Report, Korea – Measures Affecting Imports of Fresh, Chilled and Frozen Beef, WT/DS161, 169/AB/R, adopted 11 December 2000 Appellate Board Report, Mexico – Tax Measures on Soft Drinks and Beverages, WT/DS308/AB/R, adopted 6 March 2006 Appellate Board Report, United States – Measures Affecting the Cross-Boarder Supply of Gambling and Betting Services, WT/DS285/AB/R, adopted 20 April 2005 Appellate Board Report, United States – Final Anti-Dumping Measures on Stainless Steel from Mexico, WT/DS344/AB/R, adopted 30 April 2008 Appellate Body Report, United States
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