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CYIL 8 ȍ2017Ȏ COUNTERMEASURES AND THEIR ȍINȎCOMPARABLE CONGRUENCE … concessions, which “ shall be equivalent to the level of nullification or impairment, ” 107 which means identity between the level of suspension and the level of nullification or impairment of benefits. The second category of retaliation contains the countermeasures under Article 4 of the WTO SCM Agreement, 108 which have been earmarked as the “ real ” WTO countermeasures, more flexible than strict retaliation, and even resembling the CIL countermeasures under the law of state responsibility in some aspects, 109 as an authorized complaining party may take only commensurate or “ appropriate countermeasures ” 110 against the violator, but no equivalence is required. As Abe 111 pointed out, “… it can be said that the legal nature of retaliatory suspension of concessions under DSU is different from that of countermeasures under the SCM Agreement, and that the latter, in particular, are akin to countermeasures in general international law.” Finally, it goes without saying that the WTO DSU remedies – and especially the WTO countermeasures, which when used as a model for investment arbitrations could pass for going backwards, but armed with new technology – may be distinguished from the remedies in investment treaty arbitration on three basic grounds. First, unlike investment tribunals, the WTO adjudicatory bodies do not award monetary compensation in their reports, while this has been the most important remedy in investment treaty arbitration for decades. 112 Second, the recommendations of the WTO adjudicatory bodies are proactive, rather than reactive, and no compensation for the injury caused to the complaining state may be secured. As Sinclair and Sebastian 113 noted, “ In the terminology of the ILC Articles, there is an obligation of cessation but there is no obligation of reparation .” Finally, upon rendering the report, the burden of proving compliance with the WTO obligations shifts to the obliged state, as the WTO adjudicatory bodies never specify how the discriminatory measure – speaking in the WTO jargon – should be brought into conformity with WTO law. This is the task for the violator, for which he is given the RPT. 114 Conclusion Earlier in this article I have argued that the attitude of the arbitral tribunal in the Corn Products and Cargill cases toward the nature and character of investors’ rights in investment arbitration is realistic and pleasantly appealing, especially after reviewing NAFTA Chapter 11, which provides direct rights to investors, and nowhere in NAFTA (nor in the ICSID Convention) has an investor been strapped with countermeasures in any manner, either as 107 THE WORLD TRADE ORGANIZATION: The Legal Texts: The Results of the Uruguay Round of Multilateral Trade Negotiations, Cambridge University Press, Cambridge, 2011, p. 370. 108 The WTO Agreement on Subsidies and Countervailing Measures. 109 ABE, J., Implementation System of the WTO Dispute Settlement Body, op. cit ., p. 8. 110 Article 4, section 7 of the SCM Agreement. 111 ABE, J., Implementation System of the WTO Dispute Settlement Body, op. cit ., p. 27. 112 In case the obliged WTO member did not cease the conduct which is in violation of its WTO obligations, both retaliation and countermeasures are available to the entitled member state, but never any monetary compensation. 113 SEBASTIAN, T., SINCLAIR, A. C., Chapter 9: Remedies in WTO Dispute Settlement and Investor-State arbitration, op. cit., p. 278. 114 See more on differences between the WTO law and the international investment law in CARMODY, Ch., Obligations Versus Rights. Substantive Difference between the WTO and International Investment Law Asian Journal of WTO & International Health Law and Policy, 2017, Vol. 12, pp. 75-104. 4.

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