Using GATS Article II to Resort to Investment Arbitration

  • Sébastien ManciauxEmail author
Part of the European Yearbook of International Economic Law book series (EUROYEAR)


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.


GATS Investment arbitration Consent MFN clause WTO law Direct invocability States’ intentions Ejusdem generis principle Systemic consequences 


  1. Alemanno A (2004) Private parties and WTO dispute settlement system. Cornell Law School Inter-University Graduate Student Conference Papers. Paper 1:1–33Google Scholar
  2. Alford RP (2014) The convergence of international trade and investment arbitration. Santa Clara J Int Law 12(1):35–63Google Scholar
  3. Allen BE, Soave T (2014) Jurisdictional overlap in WTO dispute settlement and investment arbitration. Arbitr Int 30(1):1–58Google Scholar
  4. Berkey JO (1998) The European Court of Justice and direct effect for the GATT: a question worth revisiting. Eur J Int Law 9:629–633Google Scholar
  5. Bourgeois JHJ (2000) The European Court of Justice and the WTO: problems and challenges. In: Weiler JHH (ed) The EU, The WTO and the NAFTA. Toward a common law of international trade, Collected courses of the Academy of European Law. Oxford University Press, Oxford, 9(1):71–124Google Scholar
  6. Bronckers M, McNelis N (2001) The EU trade barriers regulation comes of age. J World Trade 35(4):427–482Google Scholar
  7. Broude T (2013) Investment and trade: the “Lottie and Lisa” of international economic law? In: Echandi R, Sauvé P (eds) Prospects in international investment law and policy: world trade forum. Cambridge University Press, Cambridge, pp 139–155Google Scholar
  8. Cottier T (1998) Dispute settlement in the world trade organization: characteristics and structural implications for the European Union. Common Mark Law Rev 35(2):325–378Google Scholar
  9. Dimascio N, Pauwelyn J (2008) Non-discrimination in trade and investment treaties: worlds apart or two sides of the same coin. Am J Int Law 102(1):48–89Google Scholar
  10. Eeckhout P (1997) The domestic legal status of the WTO agreement: interconnecting legal systems. Common Mark Law Rev 34(1):11–58Google Scholar
  11. Garcia-Bolivar O (2010) Comparing arbitrator standards of conduct in international commercial, trade and investment disputes. In: AAA/ICRD (ed) AAA handbook on international arbitration practice, New York, pp 251–269Google Scholar
  12. Grotius H (1625) De jure belli ac pacis, libri lres. In: Scott JB (ed) (trans: Kelsey FW). Clarendon Press, Oxford, p 1925Google Scholar
  13. Hoekman B (2002) The WTO, functions and basic principles. In: Hoekman B, English P, Mattoo A (eds) Development, trade and the WTO: a handbook. The World Bank, Washington, DC, pp 41–49Google Scholar
  14. Kurtz J (2004) The MFN standard and foreign investment: an uneasy fit? J World Invest Trade 5(6):861–886Google Scholar
  15. Kurtz J (2005) The delicate extension of the most-favoured-nation treatment to foreign investors: Maffezini v. Kingdom of Spain. In: Weiler T (ed) International investment law and arbitration: leading cases from the ICSID, NAFTA, bilateral treaties and customary international law. Cameron, London, pp 525–555Google Scholar
  16. Morrison FL, Hudec RE (1993) Judicial protection of individual trade rights in the US. In: Hilf M, Petersmann EU (eds) National constitutions and international economic law. Kluwer, The Hague, pp 91–133Google Scholar
  17. OECD (2004) Most-Favoured-Nation treatment in international investment law. In: OECD Working papers on international investment. OECDGoogle Scholar
  18. Puig S (2015) The merging of international trade and investment law. Berkeley J Int Law 33(1):1–59Google Scholar
  19. Ruiz-Fabri H (2014) Is there a case – legally and politically – for direct effect of WTO obligations? Eur J Int Law 25(1):151–173Google Scholar
  20. Smith A (1776) An inquiry into the nature and causes of the wealth of nations. Strahan W and Cadell, LondonGoogle Scholar
  21. Snyder F (2003) The gatekeepers: the European Courts and WTO law. Common Mark Law Rev 40(2):313–367Google Scholar

Copyright information

© Springer Nature Switzerland AG 2020

Authors and Affiliations

  1. 1.University of BurgundyDijonFrance

Personalised recommendations