Legitimacy in WTO law and investment arbitration: the role of the contracting parties
International trade and investment law is characterized by two distinct models: the constitutional law model as found in the World Trade Organization (WTO), 1 where the remedy is “the bringing into conformity of the measure”, and the tort law model, where international law standards establish the threshold for delictive behavior, to be remedied by damages. 2 Both models represent rules-based approaches to the peaceful settlement of disputes, replacing power diplomacy. They may be considered as the finest examples of the efficient application of rules of international law. Both subsystems of international law are creations of treaties, which serve to control unreasonable political actors and positively affect regulatory governance even on a domestic level. The development of the former GATT and present WTO law is driven and controlled by the contracting parties, through the adoption of panel reports based on rather precise behavioral rules, which leads to an “authentic” interpretation of such rules by its members. 3 In contrast, standards contained in international investment agreements (IIAs) are the result of a “dilatory formula compromise”, i.e., a formal compromise without agreement on its precise content, due to historical reasons. They have been developed through interpretation by arbitral tribunals and scholarly writings in order to achieve a sufficient level of precision to provide for legal certainty and predictability. However, this occurs without further involvement of the contracting parties, which raises legitimacy issues. 4
Outward FDI does not necessarily cost domestic employment of MNEs at home: Evidence from Japanese MNEs
Whether outward foreign direct investment (FDI) projects boost or shrink domestic employment of multinational enterprises (MNEs) in home countries has long been a subject of debate. On the one hand, when MNEs implement projects abroad, it is often to replace their exports of goods and tradable services with FDI in production abroad to serve foreign markets, which reduces employment at home. 1 On the other hand, MNEs’ foreign operations may enhance production efficiency and global market access, generating greater demand for their final outputs. As a result, MNEs need to hire more employees in several production-related activities that are retained in their home countries to serve the additional foreign customers. 2 Reflecting these countervailing forces, numerous empirical studies have reported mixed and/or inconclusive findings on this subject. 3
Locating production and income within MNEs: An alternative approach based on formulary apportionment
Economic accountants, who are responsible for measuring gross domestic product (GDP), and tax authorities, which are responsible for collecting tax revenues, face similar challenges with respect to multinational enterprises (MNEs): economic accountants want to know where within an MNE production is taking place and, thus, where to attribute GDP; tax authorities want to know where income from production is earned. Current global guidance on economic accounting and international taxation generally require transactions within MNEs to be recognized at market (or “arm’s length”) values as if the transactions are taking place among unrelated entities. However, the values of transactions within MNEs may not reflect economic reality because related entities may exchange unique products with no active markets, and because MNEs may be structured with one or more entities that exist for purposes other than production. As a result, transactions within MNEs may distort economic accounting statistics and tax revenues.