MJIEL Vol 7 Issue 2 2010 - Article 3

Institutional Aspects of International Trade and Investment

Dispute Settlement Systems and the Integration of External Norms[1]



Chotika Wittayawarakul*



Abstract: This article is written in the context of the increasing call for international trade and investment tribunals to be more susceptible to other norms created outside particular trade and investment treaties. It enquires to what extent existing international trade and investment dispute mechanisms could accommodate such call. Various institutional aspects of the WTO panels and Appellate Body, ICSID and NAFTA Chapter 11 investment tribunals that might have crucial implications on the role of external norms in the settlement of disputes are examined. These include their policy goals, the nature and the composition of the tribunals, the participants in the adjudication process, the control mechanisms, and the scope of their mandates. The paper points out constraints resulted from the institutional environment, some of which could be alleviated ad hoc by the disputing parties and the tribunals whereas others might need more concerted action by the treaty parties. The comparative analysis of the institutional aspects of the tribunals provided in this contribution sheds some light on reforms that might be needed if the settlement of trade and investment disputes would be more susceptible to other norms.

[1] This article is drawn and updated from my PhD thesis submitted at the University of Manchester. I would like to thank my supervisor, Prof Asif H Qureshi and my thesis examiners, Prof Friedl Weiss and Dr Paul Kearns, for their valuable comments. Any mistake belongs to me alone. In this work, the term ‘adjudication’ will be used loosely to include a rule-oriented settlement of disputes by a third party which may not be ‘judicial’ in a strict sense.

* LLB, Thammasat University, Bangkok; MJur, the University of Oxford; PhD, the University of Manchester; a lecturer of law, Chulalongkorn University, Bangkok.

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