Benedict Kingsbury and Stephan W. Schill have posted Investor-State Arbitration as Governance: Fair and Equitable Treatment, Proportionality and the Emerging Global Administrative Law on SSRN. Here's the abstract:
Investor-State arbitration is not only a mechanism to settle disputes between an investor and a State arising out of an investment, it is also a form of global governance that involves the exercise of power by arbitral tribunals in the global administrative space. In setting standards for State conduct vis-à-vis foreign investors, for example in defining what is improper administration or a violation of due process under fair and equitable treatment, tribunals set standards which may influence future conduct by the respondent State and other States, and will very likely influence the decision-making of tribunals in other cases. In settling disputes between investors and States, the tribunals also act as pre-agreed review agencies of a State’s specific actions, in some cases applying proportionality analysis or other tools of public law review when confronted with difficult balances between investor protection and the State’s environmental or economic policy choices in the wider public interest. In these respects, investor-State arbitration forms part of a governance structure, and helps constitute and shape the emerging body of global administrative law. At the same time, this regulatory activity of arbitral tribunals attracts significant criticism, not only of specific decisions but with regard to the legitimacy of the decision-making powers of these tribunals as such. This paper argues that these concerns can be addressed, at least in part, by application of principles of the emerging global administrative law to, and by, these tribunals.
The idea that investor-state arbitration is part of "global administrative law" made me wonder whether some of WTO law could also be thought of this way. For example:
-- The review by WTO panels of domestic trade remedy decisions, a big part of which is examining the sufficiency of the domestic agency's reasoning.
-- The review by WTO panels of domestic SPS measures, to determine if they are based on scientific principles.
-- Under GATT Article X:3(a), the determination of whether laws, regulations, decisions and rulings are being "administer[ed] in a uniform, impartial and reasonable manner."
In some sense, when panels address these issues, it seems more like administrative law than pure trade law. For these provisions, panels are not saying directly that the measures are protectionist. On the other hand, perhaps a finding of violation under these provisions is an indirect finding of protectionism, in the sense that because particular process standards were not met, the actions are presumed to be protectionist.
