Protection of domestic investors under the WTO and international investment regimes

Abstract

This paper analyses how international economic law regulates measures aimed at the protection of domestic investors against foreign investors. It evaluates the logic of investment protectionism and assesses the incentives behind foreign entry barriers. It analyses and evaluates WTO GATS cases that dealt with the issue. It then develops a framework on how the facts of the China-Electronic Payments Panel decision could be assessed in international investment treaties. Several provisions common to those treaties would be applicable to the situation and the recent US-China Economic Agreement explicitly deals with the issue. However, adjudication under investment treaties would only be possible if some procedural conditions were present. The paper concludes that international economic law already covers a range of situations related to entry barriers to foreign investments. It also suggests that states can carefully tailor both substantive and procedural treaty rules to allow for coverage, or not, of situations involving domestic monopolies.