Failed Boundaries:  The Near-Perfect Correlation Between State-to-State WTO Claims and Private Party Investment Rights

This project examines all WTO filings to determine if a private party could bring an action for damages arising under the same core of operative facts pursuant to a bilateral investment treaty.   This article, Part I of the project, reviews all national treatment, most favored nation, quantitative restrictions, TBT, and SPS filings.  After exploring the doctrinal and theoretical reasons for the trade/investment tension, it analyzes all trade filings under a model investment treaty applied in light of decided cases.  The article classifies the filings into “Positive,” “Potentially Positive,” and “Negative” categories for trade and investment.  The findings show a near perfect correlation between trade and investment.