4 - Entry Rights and Investments in Services: Adjudicatory Convergence between Regimes?

Summary

This chapter deals with the enforcement of the international rules applying to the initial process of entry by analysing the possibilities and strategies of adjudication under the GATS and the dispute resolution systems of International Investment Agreements. The chapter initially evaluates whether investor-state arbitration (ISA) can be strategically used to enforce disputes when there is no investment yet. Then, it assesses the potential of state-state dispute settlement mechanisms for investment disputes. This is followed by an evaluation of the jurisdiction of the WTO DSB, especially when it comes to the enforcement of GATS provisions in mode 3. This panorama will set the ground to explain the recent innovative approaches taken by the current treaties and negotiations on the subject, illustrated by the services and establishment chapters of the EU-Canada FTA (CETA). Finally, the chapter tests to what extent the interaction in this area provides evidence of a gradual move towards a specific type of enforcement. The chapter concludes that state actors are progressively adopting convergent approaches in adjudication, at least with respect to the entry of investors in services.