Originally from Performance as a Remedy: Non-Monetary Relief in International Arbitration: ASA Special Series No. 30

Preview Page

In recent years, arbitral practitioners have looked with increasing frequency to the World Trade Organization (WTO) for guidance. Arbitral tribunals constituted under the auspices of the International Centre for the Settlement of Investment Disputes (ICSID) have cited and discussed WTO principles and jurisprudence in their awards.1 In addition, commentators have debated the relevance of WTO rules, such as nondiscrimination and most favored nation treatment, to investor-state arbitration.2

As further evidence of the apparent convergence between the worlds of international arbitration and WTO dispute settlement, a single government measure has in two instances given rise to parallel proceedings before the WTO and arbitral tribunals. The softwood lumber dispute between the United States and Canada, which arose out of the US imposition of countervailing and antidumping duties, yielded a politically-charged WTO case.3 At the same time, Canadian investors initiated arbitral proceedings against the United States based on the same measures, seeking recovery under Chapter 11 of the North American Free Trade Agreement (NAFTA).4 Likewise, a Mexican tax on sweeteners gave rise to both a successful WTO challenge by the United States and NAFTA claims by US investors.5 The existence of such parallel disputes has prompted considerable debate over the extent to which findings in a WTO dispute are relevant to (or dispositive of) claims brought in an investor-state arbitration arising out of the same government measure, and vice versa.6