Alvarez’s book is a useful, well-supported empirical study and analysis of the use of European human rights law (ECHR) and World Trade Organization law (WTO) in investor-state dispute settlement (ISDS). In this book he argues that actual reliance on ECHR law and WTO law in ISDS is less frequent than is thought, and that though such references may be useful to overcome lacunae and other criticisms of investment law, they ought to be carried out with caution and due regard to the text of applicable instruments and context. The case law is reviewed through the PluriCourts Investment Treaty Arbitration Database (PITAD) of ISDS cases, focusing on the references to these other regimes in publicly available ISDS decisions. This data driven analysis was greatly needed in the literature of ISDS where many have referred to the existence or benefits of ‘convergence’ between these regimes,Footnote 1 without, in fact, noting how frequent cross-references are or the extent of the risks that such boundary-crossing may entail. Alvarez adds on to each chapter a conclusion as to whether these references have been correctly made by the case law and what would justify an ISDS tribunal resorting to these other regimes as applicable law or interpretative guidance. The book not only systematizes the case law, which makes it a useful tool for students, practitioners, and arbitrators, but also contributes with Alvarez’s poignant analysis, bringing to the literature a critical view which thoughtfully questions generally accepted wisdom such as the benefits of these cross-references. All in all, the book is a welcome contribution to the ISDS literature.
Chapter 1 is an introduction to ‘boundary crossing’ between international investment law, WTO law, and ECHR law. Alvarez proposes different reasons (and motivations) why ISDS arbitrators might refer to these other regimes, these proposals are based on the case law, the rules of interpretation of the Vienna Convention on the Law of Treaties, the text of international investment agreements, the background of the arbitrators, as well as reputational concerns. He also discusses the relevance of these incursions in the discourse on fragmentation in international law. Notoriously, Alvarez affirms his disagreement with the need to ‘de-fragment’ international law, challenging the contentions that the investment regime is a public regime and positing that it is a hybrid public/private regime. He concludes that finding causes for boundary crossings into the fields of trade and European human rights is a purely speculative venture.
Chapter 2 refers to the use of ECHR law in investor-state law. The study is limited to European human rights law, perhaps due to the insignificance of references to other human rights regimes. This chapter refers, quite extensively, to the different publicly available ISDS decisions that have relied on and referred to decisions of the European Court of Human Rights (ECtHR). It analyses which of the parties advanced the argument based on ECHR, when that information is available, as well as how the tribunal dealt with its relevance. Here, Alvarez also looks at the back and forth between different arbitral tribunals on whether or not ECHR law ought to be considered in ISDS. The chapter deals with each of the decisions in some depth, though perhaps an explanation for the order in which they are set out could be helpful for the reader to follow along. Alvarez goes on to flesh out a series of explanations for these references to ECHR law. Amongst other interesting perspectives Alvarez puts forth that the references might be a result of considering the ECtHR part of the foundation for ‘civilized society’. Alvarez has also included a case note on Philip Morris v. Uruguay, along with an analysis of whether the decision of the majority or the dissenting opinion was correct on the issue of the applicability of ECHR law. He concludes that ISDS references to ECHR principles, such as the principle of proportionality, are incomplete and do not contemplate the innuendos of the concepts as applied by the ECtHR. He also criticizes tribunals for not giving explanations of their references to ECHR law, but acknowledges that ECHR law is generally used as a tool of interpretation and not applied as applicable law. At the end of the chapter there is a stimulating summary based on the issues raised in the case law.
Chapter 3 refers to the use of trade law in ISDS. In his analysis he looks at the cases where ISDS decisions have referred to WTO law, starting out by understriking that, despite the presence of the issue in the literature, the numbers are relatively low. As in Chapter 2, Alvarez goes into detailed analysis of the case law identified as referring to WTO law, including, as that information is available, what the origin of the reference was and its relevance to the outcome of the case. He then goes on to summarize how relevant these examples are, noting that there has been a decrease in references to WTO law in ISDS cases over time. Alvarez also goes carefully over existing scholarly writings on the topic, demonstrating how far such conclusions are held up (or not) by his empirical research and what the reasons for this could be.
Chapter 4, the concluding chapter, finds that references to ECHR and WTO law could be useful to fill perceived gaps and lacunae in investment law, as well as help correct the perceived ‘legitimate deficits’ of the investment regime. Alvarez also summarizes the hazards of these boundary crossings that he refers to in the earlier chapters of his book, for example, in light of textual differences in the applicable instruments and differences in context. He offers reasons why ECHR law is resorted to frequently in ISDS law, including the number of decisions, the legitimacy of the system and the adjudicators, and favorable commentary by academics and NGOs. He also considers the overlaps in the issues treated by the different regimes. WTO law, on the contrary, is mentioned less than ECHR law, and it is mainly referred to in relation to issues of treaty interpretation and procedural considerations. The book finishes with a detailed analysis of why cross-border references may be useful for ISDS, for example, to alleviate problems of consistency and fragmentation, and concerns of ‘humanization’ of ISDS. It also goes into the proposals for reform of the ISDS system, noting the references therein to systems like the WTO and ECtHR. In the end, he cautions that these references, though useful, must be considered in relation to the context and not used without the proper analysis.
After the concluding chapter, the reader will find a series of Tables and Appendices referred to throughout the book where summarized references to the case law and reasoning are set out. These Tables and Appendices provide a very useful overview for academics, students, and practitioners.
Overall, the book provides an innovative approach to the issue of boundary crossing between ISDS, ECHR, and WTO law. It is unique in that it is a comprehensive case-based analysis that is data driven with the added value of Professor Alvarez’s scrutiny. Its value to practitioners and litigants is not only because of its detailed case analysis, which is desirable in any undertaking to argue or decide on these issues, but also, and perhaps fundamentally, due to Professor Alvarez’s perceptive contributions on how, and why, these issues should be addressed.
