CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ ALTERNATIVE VISIONS OF THE INTERNATIONAL LAW ON FOREIGN INVESTMENT may seek to achieve systematic maturation over a longer horizon” (p. 27). The author builds on the concept of “a double helix arguing that the twin strands of international trade and investment law represent a pair of congruent geometrical helices with the same axis. In this model, trade and investment law do no simply exist to supply analogical guidance or reasoning from source to target domain. Instead, those twin strands are partly constituted by, and will increasingly cohere, around the unifying core” (p. 24). Such a trend is particularly visible in the new generation of free trade agreements which regulate both trade and investment. After this introduction, the long and dynamic historiography of the two pillars of international economic law is introduced. Kurtz paints a scene where both regimes face difficult challenges and at the same time the disputes under their legal framework expand. The commonly expressed concerns over investment protection and ISDS were already described in this review above. In the WTO, negotiations under the Doha Round commenced in 2001 and there is still a lack of substantial progress and their successful conclusion is out of sight. Although at first highly praised, the adjudicating role of the WTO is a frequent target of criticism from the membership of the WTO NGOs as well due to many reasons, such as insufficient transparency or ineffective enforcement. The third part of the book offers a very imaginative look at scientific examination in adjudication cases in the WTO as a possible source of inspiration for investment law, particularly in disputes introduced on the basis of the SPS or TBT agreements.. According to Kurtz, this “might offer objective support that a given measure is empirically effective” and “supports the view that state’s chosen measure was necessary for the pursuit of permitted policy goals” (p. 146). Thus, the tribunals’ deference to scientific methods and evidence employed by disputing parties can contribute to a balanced and robust interpretation tool for a number of investment treaty provisions, above all for fair and equitable treatment. The Methanex , Chemtura and Bilcon awards represent for the author a welcome development in this direction. The following chapter examines the importance of common exceptions and derogations in both systems. There is a clear trend in investment treaty practice to implement explicit flexibilities on the basis of WTO-based exceptions. Kurtz welcomes this development where general provisions in WTO agreements ensure domestic stability and the pursuit of core public values by its members vis-à-vis embedded liberalism. For him, this framework provides a “remarkable stability” for the multilateral system of trade liberalisation, which has not experienced so far any unilateral withdrawals compared to the investment regime marked by several dramatic exits (p. 171). For Kurtz, a simplistic “copy and paste” of WTO law exception is not a solution. After a careful examination of the relevant WTO and investment tribunals’ jurisprudence, he instead proposes a modelling strategy where investment treaty negotiators take the best features of the WTO law and then adapt it to particular needs and concerns. The most thought-provoking part is probably the one dealing with dispute settlement mechanisms. Kurtz identifies that the ISDS system is characterised by a similar weakness as the GATT era trade disputes: inconsistency in decision-making and poor coherence of reasoning of decisions. Apart from some minor reform techniques such as the possibility of participation of a stakeholder or effective defence against unfounded claims, the most problematic issue to be dealt with is the influence of disputing parties over selection of

631