This article examines the question of whether the wto enjoys a monopoly over the settlement of trade disputes by examining the historical context of the Dispute Settlement Understanding of the wto, including early dispute resolution under the gatt and the goal behind the transformation leading to the wto of curbing potential unilateralism within the trade regime. It argues that this culminated in the intention to create a centralized rule-based system for the settlement of disputes, rather than an intention to create a monopoly for the wto. The article examines potential threats to the so-called monopoly, in particular with the proliferation of Regional Trade Agreements (rtas) and the development of Mutually Agreed Solutions (mas). It also addresses relevant case law to demonstrate that the wto does not and was not intended to enjoy a monopoly over trade disputes. Rather, the wto pursues the objective of strengthening the multilateral trading system rather than encouraging unilateral trade action, which would not appear to be undermined by resort to the dispute settlement mechanisms of relevant rtas or other dispute settlement mechanisms.
Makane Moïse Mbengue engages a ‘conversation’ with Judge Weeramantry (who has been rather critical on the caution that the Court exercised with respect to the legal status of sustainable development), showing that despite the judicial restraint that has characterized the treatment of the issue, the Judgment of the Court paved the way for a more progressive judicial construction of sustainable development.
In this chapter, which serves as general introduction to the book, the editors present the core assumptions and the main themes of the overall project and provide a cartography to help the reader follow the flow of the argumentation throughout the volume. International trade and investment in energy have never been greater than at present. Yet, the international trade and investment legal frameworks are not expressly tailored for the energy sector and often overlook the potential repercussions of energy activities in other contexts. First, energy poses one-of-a-kind challenges to the existing trade and investment disciplines. Multilateral trade rules were not designed with energy in mind and, as a result, do not feature any energy-specific provisions. Nevertheless, their rules do apply to energy goods and services, as they generally apply to all economic sectors, and yet they might not always be adequate to deal with energy. Second, energy activities pose significant risks in terms of environmental degradation and human rights violations. Tensions do exist between the international legal framework that regulates trade and investment on the one hand, and the one governing human rights and environmental protection on the other. The aforementioned inadequacy of existing trade and investment rules relates, at least in part, to that fact that these rules often do not account for the potential human rights and environmental impacts of energy trade and investment.
In these concluding observations, the editors reflect on the challenges the international trade and investment regimes are currently facing in the context of energy, and which have emerged from the chapters of this book: accounting for the specificities of the energy sector and for the environmental and human rights impact of energy trade and investment activities. To address these challenges, this final chapter relies on the different chapters in the volume to set out three main approaches to bridge the gap between economic and non-economic considerations in the treatment of international energy trade and investment.
This chapter argues that investment arbitration has undergone a transformation. Having been created with the original intended function of protecting foreign investors, it has been for a long time a forum where investors would bring investment (not environmental) claims, and even in those few instances where environmental issues were raised, tribunals would mostly discard them as irrelevant. More recently, however, it seems to have become a system that allows and ensures the compliance with and enforcement of environmental norms. To explain this transformation, it examines three main drivers of change: the use of environmental issues by the parties, the attitude of tribunals, and the introduction of environmental provisions in investment agreements.