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Valentina Vadi

What role, if any, do human rights and investments play at the WTO? Although the law of the World Trade Organization (WTO) does not govern foreign direct investment in general, some WTO Agreements govern aspects of it. Moreover, some of the cases adjudicated at the WTO have touched upon several human rights including civil and political rights, economic, social and cultural rights as well as ‘third generation’ rights. This chapter aims to uncover the various dimensions of the complex interplay between trade, investment and human rights, focusing on some case studies. This chapter concludes that while a number of legal tools can foster the reconciliation of opposing interests under WTO law, much remains to be done to ensure better coherence between theory and practice.

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Valentina Vadi

Several intangible cultural heritage controversies have arisen during trade negotiations and have been brought before the World Trade Organization (WTO) Dispute Settlement Mechanism (DSM) where states have claimed that regulatory measures affecting their economic interests are in breach of the relevant international trade law provisions. These disputes highlight the emergence of a clash of cultures between global economic governance and the protection of intangible cultural heritage. Has an international economic culture emerged that emphasises productivity and economic development at the expense of international cultural heritage? After a brief overview of the international legal framework protecting intangible cultural heritage at the international law level, this chapter investigates whether, and if so how, the WTO has dealt with intangible cultural heritage. Does the existing legal framework adequately protect intangible cultural heritage vis-à-vis economic globalisation? How does the WTO deal with intangible cultural heritage? Should the WTO DSM take into account the cultural concerns of the affected communities? Or are cultural concerns merely to be conceived as a disguised form of protectionism? What steps can be taken to ensure mutual supportiveness between different legal regimes protecting intangible cultural heritage on the one hand and trade on the other?

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Valentina Vadi

What role do local communities play in the making of international economic law? Do local cultural heritage and values matter in the adjudication of international economic disputes? Where there is a conflict between the objective of global economic liberalization and the pursuit of local cultural policies, should the local give way to the global? Like other branches of international law, international economic law treats each state as one unit and does not typically focus on the different subparts within states. As a result, local communities do not appear in the text of international economic law treaties. Only recently have local communities gradually emerged in the adjudication of international economic disputes. Despite their gradual appearance, they still remain significantly absent or marginalized in mainstream international economic law discourse. This chapter thus aims to fill this gap in legal literature by investigating the impact of economic globalization on local communities and the role that local communities play in international economic law and adjudication. Socio-legal approaches to international economic governance reveal that, substantively, a clash of culture can emerge between an international economic culture aimed at productivity and development and local cultural practices. Procedurally, international economic courts may not be the most appropriate tribunals for disputes adjudicating cultural heritage-related issues. After briefly discussing these findings, this chapter highlights two different yet complementary avenues for integrating local communities’ concerns into the fabric of international economic law.

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Valentina Vadi

International investment law has furthered the protection of pharmaceutical patents, considering it a form of investment and providing patent owners with access to investor–state arbitration. Patent owners can and do use investment treaty arbitration to challenge alleged infringements of patent rights by governments or by third parties under a host government’s jurisdiction. Have arbitral tribunals taken public health considerations into account when adjudicating pharmaceutical patent-related cases? If so, have they considered public health either as an exception to investment treaty standards or as a part of the interpretation of the same standards? What techniques are available to avoid regime collisions between international investment law and other fields including public health law? This study offers a primer on recent investment disputes concerning pharmaceuticals. The underlying assumptions of this chapter are that adjudication is a mode of governance and it has a fundamental importance with regard to the concrete implementation of a given legal regime. The chapter aims to examine the existing investor–state arbitrations concerning pharmaceuticals and to critically assess their potential impact on public health.

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Valentina Vadi

This chapter briefly illustrates the fundamental features of international investment law and arbitration. After providing some historical background, it explores the normative framework that governs foreign direct investment. Most contemporary investment treaties include investor–state arbitration for the settlement of disputes that may arise between the foreign investor and the host state. Under this mechanism, foreign investors may bring claims directly against the host state before international arbitral tribunals. The internationalization of investment disputes has been conceived as an important valve for guaranteeing a neutral forum and depoliticizing investment disputes. Despite its flourishing, investment treaty law and arbitration is facing a ‘legitimacy crisis’. The debate has focused on the extent to which international investment agreements delimit state sovereignty and its ability to regulate. The chapter highlights that this area of law remains undertheorized, and that more theoretical studies are needed in order for it to develop in conformity with, and contribute to, international law.

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Valentina Vadi

Can the use of constitutional analogies contribute to the current debate on the legitimacy of investor–state arbitration? Can constitutional benchmarks, such as proportionality or reasonableness, help arbitrators in interpreting and applying broad and open-ended investment treaty provisions? The migration of domestic concepts to the international plane and the parallel infusion of international law concepts in the domestic sphere are not new phenomena; rather, under specific circumstances, such migrations can become constituent features of public international law and domestic law respectively. Two sources of public international law may derive from national law, namely, customary law and general principles of law. Adjudicators may consider domestic notions in order to clarify treaty terms, albeit, of course, the national meaning does not necessarily correspond to the international meaning, and vice versa. An examination of the eventual migration of constitutional ideas to the public international law realm offers a possible lens through which to examine the field of international investment law and arbitration. It highlights the multiple points of interaction between the domestic and the international level. At the same time, the chapter cautions against the mechanical transposition of domestic law concepts in international law because this can undermine the adjudicatory function under public international law. Therefore, a critical approach to the use of such concepts should be adopted.

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Valentina Vadi

This chapter addresses the question of whether the concept of proportionality can and/or should migrate to international investment law and arbitration. Depending on context, proportionality can be defined as an objective of policy makers, and as a particular structured approach to judicial review. Proportionality requires that policy makers and adjudicators strike an appropriate balance between the public and private interests and give reasons for the restriction of individual autonomy. It seems to have a mathematical precision. However, critics contend that proportionality is a chimera. While formally appealing, the concept remains substantively indeterminate. Because of its indeterminacy, it contributes little to restraining the legislative, executive and adjudicative powers of states. Rather, critics contend, proportionality risks empowering the adjudicators to second guess national policy makers. Against this background, the chapter examines the promises and pitfalls of the concept. It then illustrates the migration of the notion of proportionality from its constitutional matrix to EU and international trade law. The chapter then critically assesses whether proportionality has migrated to international investment law, and, if not, why not. It also investigates whether proportionality can be considered to be a general principle of international investment law.

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Valentina Vadi

Reasonableness is a standard of good governance that guides states in adopting measures, calibrating public and private interests and giving reasons for their action. Several international law instruments require that state action be reasonable. International courts and tribunals have also used reasonableness to review state action. Despite its pervasiveness, the concept of reasonableness remains underexplored in international investment law. In order to address this gap in legal scholarship, this chapter examines the analytical merits and pitfalls of the concept of reasonableness and its use in investment treaty arbitration. It investigates whether, and if so to what extent, reasonableness has migrated to international investment law and arbitration and/or whether it belongs to the field. It then evaluates whether the use of reasonableness in investment arbitration can be desirable and under what circumstances. The chapter highlights that reasonableness may be an appropriate criterion of review, one that has been used extensively by arbitral tribunals and other international courts.