This is related to Simon’s earlier post.
Matthew Dalton from Wall Street Journal raised an interesting hypothesis regarding the controversial investor-state dispute settlement mechanism under the Transatlantic Trade and Investment Partnership (TTIP). What if decisions of an investment tribunal and a domestic court on the same subject-matter diverge or conflict from each other?
“For example, suppose the German government orders a European chemical company and a U.S. company to pay for the clean-up of toxic waste at a factory site they jointly own — but orders the U.S. company to pay the majority of the costs. The U.S. company says the costs should be evenly divided and appeals to an ISDS tribunal, which sides with the U.S. company. Then a German court upholds the German government’s decision.”
On the face of it, this hypothesis appears to concern a national treatment issue. I know it lacks a number of pieces of information necessary to reach any informed conclusion. But for the purpose of a thought experiment, let us still hazard a guess here. Here goes a multiple choice.
1. The investment tribunal decision should always (both domestically and internationally) prevail.
2. The German court decision should always (both domestically and internationally) prevail.
3. The investment court decision should prevail internationally and the German court decision should prevail in Germany.
4. None of the above
What do you think?
