CYIL vol. 11 (2020)

CYIL 11 (2020) SOVEREIGN WEALTH FUND The WTO – the utmost organization representing public international law in the field of international trade – does not regulate SWFs. None of the 60 or so treaties which are overseen by the WTO touch upon SWFs. Moreover, the conclusion of a SWF treaty within the WTO does not appear imminent. Although the WTO principle of non-discrimination can be applied to the protection of goods and services provided by SWFs as against the discriminatory and protective measures of recipient countries, recipient countries may readily invoke the national security 77 and national public order 78 justifications of the WTO for such national measures. This restraint on public international law can be defined as a 21 st century feudalism 79 between advanced, modern nation-states. As regards the SWF, public international law as we know it has become nuanced and “privatized” through special bilateral relationships between governments. The idea of specific ties between governments dominates the SWF landscape. This is a displacement from law to ties, 80 a displacement from public international law to bilateral diplomacy and politics. Hence the need felt by the SWF owner countries and the International Monetary Fund (IMF) to declare some universal principles – the Santiago principles – to bring SWFs into the fold of public international law. 7. Santiago Principles In 2008, under the aegis of the International Monetary Fund (IMF), the Santiago Principles for SWFs were adopted by the International Working Group of Sovereign Wealth Funds (IWG-SWF). 81 The Santiago Principles were the result of an intergovernmental initiative and aim to help governments possessing SWFs to exert an influence in the global debate on SWFs. 82 The IWG-SWF was, in fact, a network of countries that possess SWFs. In 2009, the IWG-SWF was replaced by the International Forum of Sovereign Wealth Funds (IFSWF). At present, the Santiago Principles are invoked and promoted by the IFSWF. 83 The Santiago Principles aim at deflecting national security concerns and politicization with regard to SWF actions in recipient countries 84 but they do not constitute formal or binding law. The IFSWF, a consultative forum established just after the declaration of the Santiago Principles, is a typical institution of “informal international law”, 85 where binding 77 General Agreement on Tariffs and Trade, Article XXI. Accessible at https://www.wto.org/english/res_e/ booksp_e/gatt_ai_e/art21_e.pdf (accessed on 02/04/2020). 78 General Agreement on Trade in Services, Article XIV(a). Accessible at https://www.wto.org/english/tratop_e/ dispu_e/repertory_e/g4_e.htm (accessed on 02/04/2020). 79 SUPIOT, Alain, The public-private relation in the context of today’s refeudalization , ICON , vol. 11, no. 1, 2013, p. 139. 80 Ibid., p. 140. 81 Accessible at https://www.ifswf.org/sites/default/files/santiagoprinciples_0_0.pdf (accessed on 26 February 2020). 82 MAZOWER, Mark, Governing the World, The History of an Idea, Allen Lane, Penguin Books, Great Britain, 2012, pp. 358-359. 83 Accessible at https://www.ifswf.org/santiago-principles (accessed on 26 February 2020). 84 ROSE, Paul, Sovereign Wealth Fund Investment in the Shadow of Regulation and Politics , Georgetown Journal of International Law , 40(4), 2009, p. 1216. 85 See, in general, PAUWELYN, Joost, WESSEL, Ramses, WOUTERS, Jan, Informal International Lawmaking, Oxford University Press, Oxford, 2012.

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