CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ COUNTERMEASURES AND THEIR ȍINȎCOMPARABLE CONGRUENCE … economic actors 63 and a breach of either the WTO Agreement or the investment treaty is an internationally wrongful act, entailing the perpetrating state’s responsibility, as defined in the ILC Draft Articles. 64 However, from a functional point of view, enforcement mechanisms and their legal remedies in the WTO law and the law of international investment treaties are different and work in a totally different legal environment, except for sharing together a common status of a lex specialis arrangement in relation to the default regime, set up in the ILC Articles. 65 The thesis of this article is that unless allowed for in investment treaty specifically in relation to investors, the use of the CIL countermeasures in investment arbitrations is implausible and groundless, because foreign investors (as the parties to investment arbitrations) are non-state actors, 66 who have not been subordinated to the relevant investment treaty obligations, which operate mutually among states – the parties to that treaty as prospective investors’ home states and host states. Given that every investment treaty arbitration at the investor-state level is a settlement of international investment dispute between the investor and the host state, there has not been left any artificially created place and space for the home state as a third party, obviously as there is none 67 – and it is farcical always to accentuate that this paradigm is applicable only under the ICSID Convention. Otherwise the ISDS mechanism would have been dismissed as untrustworthy by every prudent foreign investor for a long time now. Paparinskis 68 asks intuitively: “Conversely, if countermeasures cannot be taken against investors, is there any utility in taking them all?” Indeed, in case an overzealous arbitral tribunal has shown its willingness to decide disputes among the investor’s host state and the home state in investment arbitration, while having to decide on the claim of the investor against the host state, surely such a tribunal is tiptoeing toward exceeding its jurisdiction and acting ultra petita . 69 Not only that, but if an invocation of the host state’s countermeasure against the home state as a practical bar to the investor’s claim against the host state became the rule, instead of exception, one might perhaps wonder in whose interests arbitrators are actually doing their job. Considering all the facts mentioned above, it might be unreasonable for academics and practitioners properly educated in the nuances of international arbitration proceedings to disagree with the stoical remark of the aforementioned commentator on the utility of the application of countermeasures against investors, according to which “ perhaps there is no utility, and one should welcome that .” 70 In addition, as the whole doctrine of countermeasures as enacted in the ILC Draft Articles went down for some acidic criticism 71 for being flawed because of its strict procedural 63 SEBASTIAN, T., SINCLAIR, A. C., Chapter 9: Remedies in WTO Dispute Settlement and Investor-State Arbitration, op. cit., p. 274. 64 Draft Articles, op. cit , see art. 1. 65 SEBASTIAN, T., SINCLAIR, A. C., Chapter 9: Remedies in WTO Dispute Settlement and Investor-State Arbitration, op. cit., p. 276. 66 Ibid , p. 290. 67 See section 4 of the separate opinion of A. Lowenfeld in Corn Products International, Inc. v. United Mexican States, op. cit., p. 3. 68 PAPARINSKIS, M., Circumstances Precluding Wrongfulness in International Investment Law, op. cit ., p. 497. 69 See a resourceful explanation in LEW, J., MISTELIS L. A., KROLL, S., Comparative International Commercial Arbitration, Kluwer Law International, The Hague, 2003, p. 716. 70 PAPARINSKIS, M., Circumstances Precluding Wrongfulness in International Investment Law, op. cit ., p. 497. 71 FITZGERALD, E., Helping States Help Themselves, op. cit ., p. 78.

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