Great Expectations: the Treatment of Expectations in WTO and International Investment Law

A continuing issue in many areas of law is the treatment of “reasonable” or “legitimate” expectations. This contribution posits that a doctrine of expectations is vital to both the law’s stability and flexibility, functioning as a kind of ‘shock absorber’ that accommodates divergent pressures within a legal system. Expectations may arise subjectively, but what the law protects in most instances is determined objectively. This contribution goes on to examine the treatment of expectations in WTO and international investment law. Their treatment in WTO law has been to read them out as a matter of pleading in WTO dispute settlement, apart from the rare instance of non-violation. Their treatment in international investment law, where they are prominent, continues to be controversial. Still, expectations are unlikely to be completely effaced as a source of norms. They remain a constitutive element of any legal system. This contribution also examines the consequences of a doctrine of expectations for the revival of embedded liberalism, suggesting that any effort to do so will have to grapple with expectations as a pervasive feature of normativity under conditions of stasis and change

Creating Shelf Space : NAFTA\u27s Experience with Cultural Protection

The relatively swift negotiation and implementation of the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions (CCD) invites us to consider what came before it and what may follow. This article reviews experience with the creation of cultural “shelf space” under the North American Free Trade Agreement (NAFTA) through the use of a cultural “exception” and how this experience served as an important impetus for Canadian leadership in the negotiation and conclusion of the CCD. The article goes on to consider the CCD’s potential impact as custom and process in the creation of cultural “shelf space” internationally

A Theory of WTO Law

The creation of the World Trade Organization in 1994 has left open the question of whether we can identify a theory of its legal system. A theory should help us to better understand what WTO law is as well as what it should be. This article posits the idea that a theory can be identified if we conceive of the WTO Agreement as protecting expectations about trade, facilitating adjustment to realities encountered in trade, and promoting interdependence between economic operators. Each of these purposes is implemented under the WTO Agreement by a specific instrument. In the case of expectations it is collective obligations, in the case of realities it is individual rights, and in the case of interdependence it is a combination of the foregoing two, a lex specialis. The interaction is emblematic of a deeper division within the treaty between opposing modes of law

Clearly Canadian: Public Participation in Canadian Unfair Trade Action

The Canadian Council on International Law was founded in 1972 to represent Canadian international law practitioners and academics and to facilitate and promote the study of international legal problems by scholars and professionals. These conference proceedings comprise a collection of essays written by leading academics and practitioners on the subject of how international law affects Canadian domestic law. A wide range of domestic law areas are covered, including environmental law, international trade law, constitutional law, international treaties, and the treatment of women in relation to immigration and refugee law. This work will be of value to Canadian scholars and practitioners, professionals who have international dealings with Canada on a public or private basis, and those with an interest in comparative law

Obligations versus Rights: Substantive Difference between WTO and International Investment Law

WTO law remains relatively uncontentious whereas international investment law elicits much more debate. This article posits that the differences in reception are attributable to deeper substantive differences about what is protected under each regime. In WTO law what is protected is the sum total of all commitments and concessions under the WTO Agreement, something that can be thought of as a “public” good. When a country injures that good, the remedy is for the country to cease the injury, a requirement that naturally places emphasis on obligation. In international investment law, by contrast, what is protected is individualized to a particular investor. The violation is evidently “private”. When a country injures that good, the usual remedy is compensation, a requirement that naturally places emphasis on the investor’s rights. This difference suggests that WTO law is primarily a law of obligation which is equality-oriented, prospective, constitutive and deductive, whereas international investment law is primarily a law of rights which is fairness-oriented, retrospective, contractual and inductive. A law of rights is subtractive, and to that extent, less stable. The identification explains why there have been recent moves to constitutionalize international investment law by introducing a greater degree of obligation. The change is meant to redress the perceived jurisprudential imbalance in the field and strengthen its sense of community