11 - Epilogue: ‘Convergence’ Is a Many-Splendored Thing

Summary

The author reflects on the conclusions of the contributors to the edited volume and, based on his prior research, provides his own perspective on the main topic. His prior analysis of 395 ISDS rulings – and how they reference WTO law and European human rights law – throws cold water on the proposition that the trade and investment regimes, which some see as wrongly separated at birth, are converging around substantive common principles, standards or rules. Firstly, if significant trade-investment law convergence exists, it is not occurring through explicit reliance on WTO law by ISDS arbitrators. Secondly, the references to WTO law that he finds were narrow not only with respect to the numbers of IIAs involved; they were narrow with respect to the kinds of issues on which trade law was deemed relevant. The author furthermore acknowledges the limitations of citation studies, such as those conducted by him, as the two regimes may engage in other ways, apart from what happens at the final public stage of formal dispute settlement.