CYIL vol. 8 (2017)

KATARÍNA CHOVANCOVÁ

CYIL 8 ȍ2017Ȏ

1. Introduction and Basic Characteristics “How do we begin to covet? Do we seek out things to covet? We begin by coveting what we see everyday .” 1 Surely, when contemplating myriads of well-reasoned legal arguments in an attempt to decipher the best one made by host states’ legal counsels, this will mean thinking the unthinkable – even if all the negative consequences of invoking the CIL 2 countermeasures against unsuspecting foreign investors had to be implicated. However, when “ coveting ” is joined by anger and cupidity, it may result in an artificial stock taking of countermeasures 3 and their being thrown blindly on investors in a “going backwards” manner, while ignoring the realities of the almost incomparable commensurability of countermeasures in investment arbitration 4 and the WTO implementation system. Truth to be told, it is highly likely that an ease of affordability of the CIL or WTO DSU 5 countermeasures should not be assimilated with their plausibility in international investment arbitration. Nor should it be mistaken for their resilient feasibility due to one overrated three-phase Blitzkrieg led against foreign investors in international investment arbitrations in Corn Products v. Mexico (“the Corn Products”) , 6 ADM v Mexico (“the ADM”) 7 and Cargill v Mexico (“the Cargill”) 8 with the US investors’ resistance against uninhibited aspirations of Mexico being miles away from being futile. It is now common knowledge that Mexico did not succeed with its plainly orchestrated defence in any of the three aforementioned NAFTA 9 investment arbitrations, which was an anticipated and hardly a surprising outcome of the whole extraordinary saga. On the other hand, it is submitted that these were exceptional arbitrations, because they spawned a very lively and fruitful ongoing discussion 10 on the mutual relationship of investment arbitration and other areas of international law in general, 11 and the nature and variable scope of investors’ treaty based rights together with retained rights of the parties to the investment treaty (both the host states and home states) in particular. 12 1 T. Harris: Silence of the Lambs. 2 Customary international law. See in detail ABE, J., Implementation System of the WTO Dispute Settlement Body: A Comparative Approach, Journal of East Asian & International Law, 2013, Vol. 6, pp. 7-28. 3 See e.g. BEDERMANN, D., Counterintuiting Countermeasures, The American Journal of International Law, 2002, Vol. 96, pp. 817-832. 4 See in detail SEBASTIAN, T., SINCLAIR, A.C., Chapter 9: Remedies in WTO Dispute Settlement and Investor-State Arbitration: Contrasts and Lessons. In: ROMANETTI, A., STIRNIMANN, F. X., HUERTA- GOLDMAN, J. A., WTO Litigation, Investment Arbitration, and Commercial Arbitration, pp. 273-292. 5 The Dispute Settlement Understanding of the World Trade Organization. 6 Corn Products International, Inc. v. United Mexican States , ICSID Case No. ARB (AF)/04/1, 18 August 2009.See more at: https://www.italaw.com/cases/documents/348#sthash.NtzPZx1l.dpuf . 7 Archer Daniels Midland Co and Tate & Lyle Americas, Inc v. Mexico, Award , ICSID Case No. ARB(AF)/04/05, 21 November 2007. Available at https://www.italaw.com/sites/default/files/case-documents/ita0037_0.pdf. 8 Cargill, Incorporated v. United Mexican States , ICSID Case No. ARB(AF)/05/2., 18 September 2009. Available at: https://www.italaw.com/cases/documents/226#sthash.4qO3iZrq.dpuf. 9 The North American Free Trade Agreement, effective since January 1, 1994. 10 See e.g. BRABANDERE, E., Investment Treaty Arbitration as Public International Law. Procedural Aspects and Implications, Cambridge Studies in International and Comparative Law, Cambridge, 2016, p. 264. 11 VAN ZIMMEREN, E., MCRAE, D., Chapter 35: Countermeasures and Investment Arbitration. In: KINNEAR, M., FISCHER, G. et al. (eds.), Building International Investment Law: The First 50 Years of ICSID , p. 495. 12 ROBERTS, A., Triangular Treaties: The Extent and Limits of Investment Treaty Rights, Harvard International Law Journal , 2015, Vol. 56, pp. 353- 417.

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