Using GATS Article II to Resort to Investment Arbitration

Abstract

It is widely known that links between international investment law and World Trade Organization (WTO) rules—which are part of competition law at the global level—are numerous. But is it possible to use a WTO rule to resort to investment arbitration? This is what a corporation from Luxembourg attempted to do recently as a consequence of a dispute arising from an investment made in the airport sector in Senegal. Since Luxembourg had no investment treaty with the investor’s host state, the claimant sought to establish the jurisdiction of an investment tribunal by combining the most-favoured-nation clause provided in General Agreement on Trade in Services (GATS) Article II and the investor-state dispute settlement (ISDS) clause contained in a bilateral investment treaty (BIT) concluded between the host state and a third country. This case has given rise to extensive arguments and exchanges between the claimant and the respondent on this issue and eventually to the 2016 Menzies v. Senegal award declining jurisdiction. This paper will address some of the arguments developed by the parties and in the tribunal’s award that shed some light on the links between global competition law and international investment law.