Good Governance Obligations in International Economic Law: A Comparative Analysis of Trade and Investment

Abstract

International trade and international investment agreements typically contain provisions requiring the parties to comply with good governance principles, such as procedural fairness and transparency. These provisions are increasingly the subject of disputes before international tribunals. The scope of these obligations is often unclear, as treaty provisions usually employ broad standards rather than specific rules. For example, the requirement to accord investors ‘fair and equitable treatment’ is common in international investment agreements, while WTO agreements demand the ‘reasonable and impartial administration of measures’. This paper compares approaches in international investment and trade law to three aspects of good governance: procedural fairness, transparency, and reasonable administration of measures. Despite textual differences, the standards adopted by these two regimes are remarkably similar. Consequently, decisions from these two branches of international economic law may provide states, tribunals, market participants and scholars with valuable insights into the conduct required by good governance obligations.