Jerusalem Review of Legal Studies, Vol. 9, No. 1 (2014), pp.

13–23
doi:10.1093/jrls/jlt010
Published Advance Access October 21, 2013

The World Trade Organization and

International Investment Law:
Converging Systems—Can the Case
for Convergence be Made?
Donald McRae*

This is a thorough and provocative treatment of the relationship between inter-

national trade law and international investment law, which makes a compelling
argument about the value to be gained from a better understanding of trade law
by investment tribunal adjudicators. The author undertakes a careful treatment
of investment tribunal decisions, showing a clear distinction between those that
have a sophisticated understanding of WTO analysis and those that do not.
This is a particularly constructive contribution to the field.
A consideration of the potentially converging systems of international trade
law and international investment law provides an opportunity not only to
reflect on the relationship of trade and investment law, but also to consider
the way that public international law is integrated into both of these branches
of international economic law. Although the author rightly suggests that the
debate on fragmentation is somewhat overblown,1 in a very real sense this is a
book is about avoidance of fragmentation.
In commenting on the book, I first want to refer to two areas where I think
that Professor Kurtz analysis is correct although might deserve further treat-
ment, and two areas where I raise queries about his analysis and conclusions.
My comments are in the nature of reflections arising out of the manuscript—
things that Professor Kurtz’s book has made me think about further. Indeed
one of the values of this book is that it opens up areas for further reflection and
indeed further research.

* Hyman Soloway Professor of Business and Trade Law, Faculty of Law, University of Ottawa.
Email: dmcrae@uottawa.ca.
1
JÜRGEN KURTZ, THE WORLD TRADE ORGANIZATION AND INTERNATIONAL INVESTMENT LAW: CONVERGING
SYSTEMS (2012) Chap. 1, I Introduction, Sect. IV.
ß The Author 2013. Published by Oxford University Press and the Hebrew University of
Jerusalem. All rights reserved. For Permissions, please email: journals.permissions@oup.com
14 Jerusalem Review of Legal Studies

Is convergence a good thing?

The first question that arises is why do we think that convergence between
international trade law and international investment law is a good thing? Jürgen
Kurtz identifies several convergence factors, which are largely empirically
based.2 And the two fields are, as he says, branches of international economic
law. And, one can go further and make the obvious point that both branches
share the fundamental principle of nondiscrimination.
The role of nondiscrimination in respect of trade is economic—it allows
equality of competitive opportunities. But does it play the same role in respect
of investment law? Do the regimes share the same objectives? DiMascio and
Pauwelyn3 suggest that they do not. In their view, trade regimes are concerned
with ‘‘overall welfare, efficiency, liberalization, state-to-state exchanges of
market access, and trade opportunities-not individual rights.’’4 In contrast, in-
vestment regimes are all ‘‘about fairness grounded in customary rules on treat-
ment of aliens, not efficiency. It is about protection, not liberalization, and
about individual rights, not state-to-state exchanges of market opportunities.’’5
Thus, for DiMascio and Pauwelyn, nondiscrimination in trade is concerned
with the protection of competitive opportunities, but nondiscrimination in in-
vestment law is concerned with the protection of rights.
If this view is correct, then what is the rationale for convergence? Indeed, as
Jürgen Kurtz points out, according to DiMascio and Pauwelyn the rights-based
orientation of national treatment under investment agreements suggests a dif-
ferent approach to its interpretation of that provision than would be applied in
the case of nondiscrimination in trade agreements.6 There are, however, two
responses to the DiMascio and Pauwelyn thesis.
First, while measures relating to expropriation and minimum standard of
treatment are clearly based on international law that developed for the protec-
tion of aliens, Most Favoured Nation (MFN) and national treatment have a
similar origin in the protection of aliens and their economic interests under
Friendship Commerce and Navigation (FCN) treaties. And although one can
say that the old law on the protection of aliens was concerned with the pro-
tection of individual rights it was in fact originally done through the exercise of
the right of diplomatic protection by the state of the foreign investor. It was the
right of the state, not the right of the investor that was being invoked. And,
nondiscrimination whether in respect of trade or investment, even if related to
some inchoate notion of the protection of rights, was performing an economic
function of protecting competitive opportunities.

2
Id. Chap. 1, I Introduction, Sect. III.
3
Nicolas DiMascio & Joost Pauwelyn, Non-Discrimination in Trade and Investment Treaties: Worlds Apart or
Two Sides of the Same Coin? 103 AM. J. INT. L. 48 (2008).
4
Id. at 54.
5
Id. at 56.
6
KURTZ, supra note 1, Chap. 2, II, Sect. IV at 104.
 Can the Case for Convergence be Made? 15
So distinguishing between the function of trade regimes and investment
regimes on the basis that one protects economic opportunities and the other
protects rights is only to look at some of the disciplines of investment law and
not the key one of nondiscrimination which is a core principle of modern
bilateral investment treaties (BITs). Further, to the extent that the nondiscrim-
ination principle protects rights it does so in relation to others—other foreign
investors and competing national investors. That is to say, the ‘‘right’’ being
protected is a right to equality in economic opportunity. In that sense nondis-
crimination in investment agreements is about preserving competition.
Second, in my view DiMascio and Pauwelyn were perhaps influenced too
much in their thinking by the existence of investor state dispute settlement,
which clearly has the appearance of protecting individual rights. They are
looking at the regime instead of the component obligations under that
regime.7 Because BITs allow individual investors to enforce rights, it gives
the impression of being rights-based. But investment agreements as Professor
Kurtz points out did not have investor dispute settlement until around the
1970s and some do not today.8 And, in any event, even under a regime that
allows investors to claim directly, the substantive provisions they are enforcing
are provisions designed to preserve competitive opportunities.
Thus, I would suggest that nondiscrimination plays in the field of investment
the same economic role that it plays in trade law. And Professor Kurtz recog-
nizes this when he says: ‘‘The common purpose that unites both systems is the
fundamental promise to extend and safeguard competitive opportunities to
foreign traders and investors.’’9 He is, therefore, right that failure of investment
tribunals to incorporate the notion of equality of competitive opportunities into
their analysis of national treatment is a major interpretative flaw, in a sense a
misunderstanding of the basic objective of nondiscrimination in the fields of
trade and investment.

Lawyers and economists in trade and investment

The second area I want to refer to is the relationship of lawyers and economists
in the regulation of trade and investment and the impact that each has had on
the development of the legal regimes in the two fields. In his book, Jürgen
Kurtz comments that in trade law ‘‘inter-disciplinary insights (especially from
economics) fuel powerful and compelling critiques of legal mechanisms’’ but
that investment law is ‘‘a field dominated by a very particular group of lawyers,
which has resulted in a highly distinct and troubling thinness to the analysis of
legal protections aimed fundamentally at economic and political issues.’’10

7
KURTZ makes a similar point, id. at 104–105.
8
Id. Chap. 2, II.
9
Id. Chap. 1, I Introduction, Sect. IV.
10
Id. Chap. 1, I Introduction, Sect. II.
16 Jerusalem Review of Legal Studies
The insight is important, as it is quite clear that the impact of economists and
those concerned with trade policy on trade law has been quite different from
the impact of economists and those concerned with investment policy on the
development of contemporary investment law.
In the field of trade law, economists (and trade policy experts) wrote and
administered General Agreement on Tariffs and Trade (GATT). The lawyers
came along later. But it meant that at the outset, the field of trade law had
been the domain of economists. It was only initially with the work of John
Jackson,11 that lawyers became familiar with what became known as interna-
tional trade law. Then, in the latter part of the GATT era and with the WTO
the focus on dispute settlement meant that GATT and WTO law became much
more the domain of lawyers. Indeed, the provisions of GATT itself, which
sketch policies and are often hortatory, can be compared with the more precise
rule making of the new agreements of the WTO.12 As I will point out later, this
has had an impact on the interpretative process under these agreements.
In contrast, the legal regime for investment has always been the concern of
lawyers. The principles and legal standards which were hotly debated over the
years, including in the New International Economic Order (NIEO) debate had
been articulated initially by tribunals and political leaders in part in the context
of the Mexican agrarian expropriations of the 1930s. And thus they focused on
the rights of aliens. They did not result from any economic analysis of the
purpose and objectives of regulating foreign investment although later the
debate certainly encompassed these matters.13 Modern BITs were drafted by
lawyers, not by economists and they are interpreted by investment tribunals
composed of lawyers even though, as Professor Kurtz argues, they deal funda-
mentally with economic and political issues. Thus, while economists dominated
the early articulation and application of trade law obligations, they have been
largely absent from the interpretation and application of principles of invest-
ment law.
The relative differences between the roles of lawyers and economists in the
two regimes may in part be the reason for the differences in the way those
regimes have developed. GATT as has been said was a compromise; it was not
just the embodiment of an economic philosophy. The notion of comparative
advantage was at the core of the disciplines of the GATT, but it was to be
balanced by the right to regulate to protect certain core values, health, envir-
onment, etc.—the embedded liberalism compromise. One of the values of

11
JOHN H. JACKSON, WORLD TRADE AND THE LAW OF GATT (1969).
12
A similar comment can be made about the difference between the Canada–US Free Trade Agreement and
the North American Free Trade Agreement (NAFTA). As an economist said to this writer, the former is an
economist’s document; NAFTA the latter is a lawyer’s agreement.
13
See RUDOLPH DOLZER & CHRISTOPH SCHREUER, PRINCIPLES OF INTERNATIONAL INVESTMENT LAW (2008).
 Can the Case for Convergence be Made? 17
Jürgen Kutz’s work is the way he brings into sharp relief this difference between
the embedded liberalism compromise of GATT/WTO and the lack of the same
compromise in the negotiation of investment regimes.14
To use Ruggie’s terms, embedded liberalism of the post-War economic re-
gimes involved multilateralism predicated on domestic intervention.15 But, in
the investment field we have ended up with a form of multilateralism arising
out of a series of essentially similar bilateral agreements, but with no preser-
vation of domestic intervention. There generally has been no GATT Article
XX in BITs. The obligations toward investors and investments give the im-
pression of being absolute.
And, even when negotiating the NAFTA the parties did not take the oppor-
tunity to redress this deficit when they could have, or arguably should have.
Jürgen Kurtz cites the standard reason given for this—that in respect of dispute
settlement, the Parties were busy negotiating on trade remedies in particular
NAFTA Chapter 19 and did not give a great deal of attention to Chapter 11
on investment.16 Yet the argument that the Parties believed that Chapter 11
would only be used to bring claims against Mexico does not seem entirely
convincing. The USA was particularly interested in challenging Canadian for-
eign investment laws and practices, and NAFTA Chapter 11 would provide
some opportunity to do this. In any event, on the question whether claims of
investors should be balanced against the policy concerns of government interest
in their right to regulate, NAFTA is at least in terms of specific provisions,
silent.
The fact that it was lawyers drafting a legal regime may have had an impact
on what was drafted. They were thinking about core provisions and process,
not directing their attention to reconciling the application of core provisions
with governmental regulation and social values. There was not the investment
policy community in governments at least at that time comparable to the trade
policy community that surrounded the negotiation, implementation, and inter-
pretation of GATT that would have had an influence on the negotiation of
NAFTA Chapter 11, the investment provisions. The opposition to a multilat-
eral investment agreement, in part civil society-based, came after the conclu-
sion of NAFTA.17
Moreover, the histories of the international trade and the international in-
vestment regimes have in many respects been quite different. GATT grew out
of the economic disorder of the inter-war period and so the conflicts that lead
to the GATT compromise were apparent. Although trade and investment

14
KURTZ, supra note 1, Chap. 5, II at 153–154.
15
J. G. Ruggie, International Regimes, Transactions and Change: Embedded Liberalism in the Post-War Economic
Order, 36 INT. ORGAN. 379–415 (1982).
16
KURTZ, supra note 1, Chap. 2, III at 57.
17
DOLZER, supra note 13 at 26.
18 Jerusalem Review of Legal Studies
provisions share some common origin in FCN agreements, much of investment
law did not have that history. The elaboration of the principles of investment
law relating to minimum standards of treatment, and to some extent expropri-
ation law, as I have said, resulted from decision-making by tribunals. And, even
today investment law is being developed through the case-by-case interpret-
ation and application of investment treaties, without a vibrant economic ana-
lysis of investment law against which this case-by-case development can be
assessed.18 This stands in contrast to the case-by-case development that is
occurring through WTO panels and the Appellate Body.

Approaches to the interpretation of

investment agreements
The third area I want to refer to concerns the interpretation of investment
agreements. Professor Kurtz’s book and methodology are built on the
modern phenomenon of investment arbitration and the essentially modern
phenomenon of trade dispute settlement under the WTO. These dispute settle-
ment mechanisms have had a tremendous impact on the development of both
trade law and investment law. The key questions dealt with in The World Trade
Organization and International Investment Law: Converging Systems concern how
effective tribunals have been in interpreting the provisions of investment agree-
ments and the extent to which investment tribunals can call on and use trade
law interpretative approaches.
Here, I think, Jürgen Kurtz, like most of us, has been captivated (if not
captured) by the interpretative approach of the WTO Appellate Body. His
views are made clear at the outset, when he says that the practices of some
arbitral tribunals, ‘‘directly mirror the crude adjudicatory habits employed by
GATT panels prior to the emergence of the WTO.’’19 And it is true, as Robert
Howse and others have pointed out, that under the guise of implementing the
objective of GATT provisions, GATT panels tended to reflect the policy
choices of the panelists.20
As a contemporary example of the ‘‘crude adjudicatory habits of investment
tribunals’’ Professor Kurtz quotes from the Enron v. Argentine tribunal,21 which
looked at what it considered to be the object and purpose of the Argentina–US

18
This situation is changing with a developing literature on the economics of investment agreements, al-
though often from a law and economics perspective.
19
KURTZ, supra note 1, Chap. 1, I Introduction at 5.
20
ROBERT HOWSE, Adjudicative Legitimacy and Treaty Interpretation in International Trade Law: The Early Years
of WTO Jurisprudence, in THE EU, THE WTO AND THE NAFTA: TOWARDS A COMMON LAW OF INTERNATIONAL
TRADE 52–53 (J. H. H. Weiler ed., 2001).
21
Enron Corporation Ponderosa Assets LP v Argentine Republic, ICSID Case No. ARB/01/3, Award, 22 May
2007, para. 331.
 Can the Case for Convergence be Made? 19
bilateral investment treaties and then said that any approach that went against
this object and purpose would have to be interpreted strictly. Having con-
structed its own view of the object and purpose of the treaty, Jürgen Kurtz says:
The Tribunal then fashions a default restrictive interpretative preference to comply
with that claimed purpose that eviscerates much of the flexibility inherent in the role
of the exception as part of the underlying treaty bargain struck by the states parties.
This method simply ignores the rules and sequencing of steps on treaty interpretation
at international law.22
In short, what Jürgen Kurtz is advocating as the correct approach to interpret-
ation, or ‘‘the rules and sequencing of steps on treaty interpretation at inter-
national law,’’ is the WTO Appellate Body’s literalist approach to the
application of Article 31 of the Vienna Convention on the Law of Treaties.23
This is an interesting and attractive argument. But can it be fully sustained?
As I read Professor Kurtz’s critique of the Enron tribunal’s approach, I was
reminded of the way the Appellate Body had interpreted the chapeau to GATT
Article XX. There, in my view the Appellate Body opted for a restrictive in-
terpretative approach to the chapeau in order to support its theory that the
rights of members under substantive obligations should not be subverted by the
actions of other members invoking exceptions, creating a hierarchy between
substantive obligations and exceptions.24 In doing so, arguably the Appellate
Body potentially eviscerated, to use Jürgen Kutz’s words ‘‘much of the flexibil-
ity inherent in the role of the exception as part of the underlying treaty bargain
struck by the states parties.’’25 What Appellate Body did not do in the case of
the chapeau to GATT Article XX was engage in any sequencing of steps in the
interpretative process so often associated with its approach to interpretation.
All of this suggests that there is a danger in being too categorical about
correct approaches to treaty interpretation. Is it clear that the interpretative
approach that GATT panels used, and some investment tribunals adopt, of
looking for the underlying object and purpose of the agreement and interpret-
ing provisions to ensure they are consistent with that purpose so wrong? It is
the approach followed by the European Court of Human Rights.26 And while
the result reached by the Court may be criticized, it is not clear that its inter-
pretative methodology can be attacked.
Of course, we can disagree with the way that object and purpose are
ascertained, and query as Professor Kurtz does, whether particular perceptions

22
KURTZ, supra note 1, Chap. 1, I Introduction at 6.
23
For a comprehensive analysis of the approach of the Appellate Body see, ISABELLE VAN DAMME, TREATY
INTERPRETATION BY THE WTO APPELLATE BODY (2009).
24
I make this argument in DONALD MCRAE, GATT Article XX and the WTO Appellate Body, in NEW
DIRECTIONS IN INTERNATIONAL ECONOMIC LAW 229–233 (Marco Bronkers and Reinhard Quick eds., 2000).
25
KURTZ, supra note 22.
26
See DONALD MCRAE, Approaches to the Interpretation of Treaties: The European Court of Human Rights and the
WTO Appellate Body, in HUMAN RIGHTS, DEMOCRACY AND THE RULE OF LAW, LIBER AMICORUM LUZIUS WILDHABER
1407, at 1409–1413 (Stephan Breitenmoser et al., eds., 2007).
20 Jerusalem Review of Legal Studies
of the object and purpose of BITs or of the WTO agreements are simplistic.
And, as he points out, a proper analysis of the object and purpose of invest-
ment agreements would disclose that the protection of the interests of investors
is not the sole purpose of investment agreements.27 But, does a methodology
that seeks to identify a general object of the agreement and then interprets the
agreement in the light of that object have no legitimacy? Indeed the Appellate
Body’s literal approach has been characterized as symptomatic of a tribunal in
the early stages of its development with the implication that as it gains matur-
ity, it will focus more on object and purpose and less on literal meaning.28 In
fact, there are already signs of an evolution in the Appellate Body’s approach.
This aspect of The World Trade Organization and International Investment Law:
Converging Systems resonated with me particularly because of the work in which
we are engaged in a Study Group of the International Law Commission on the
MFN clause. A large part of that work involves trying to understand why
investment tribunals have diverged so widely over the Maffezini issue.29
Broadly speaking, Maffezini concerns the extent to which an investor can
invoke an MFN provision in the bilateral investment treaties under which it
is bringing a claim in order to change the conditions under which the dispute
settlement provisions of that agreement are to be applied. Specifically, in
Maffezini and a number of other cases, the question was whether a claimant
could avoid the obligation to litigate in domestic courts for a period of 18
months before bringing its claim under the bilateral investment treaties?
The issue is classically one of treaty interpretation and in part tribunals differ
in their conclusions depending on whether they regard an MFN provision as
applying to dispute settlement provisions unless the parties have clearly ex-
pressed a contrary intention, or whether they regard MFN provisions as not
applying to dispute settlement unless the parties have clearly expressed an
intention that they do. Both approaches are supported by reasons that
cannot be rejected as trivial,30 and it is difficult to see how the rules of
treaty interpretation can readily answer the issue, or that one approach or
the other can be definitively characterized as wrong.
One question that arises is whether the treatment of MFN under the GATT
and the WTO by panels and the Appellate Body can provide any guidance.
The difficulty, however, is that the context is quite different. MFN under
GATT is surrounded by exceptions and qualifications; the initial grandfather-
ing of rights, GATT Article XXIV, GATT Article XX, security exceptions,

27
KURTZ, supra note 22.
28
See GEORG NOLTE, Subsequent Practice as a Means of Interpretation in the Jurisprudence of the WTO Appellate
Body, in THE LAW OF TREATIES BEYOND THE VIENNA CONVENTION 138 at 143 (Enzo Cannizzaro ed., 2011).
29
Emilio Agustin Maffezini v Kingdom of Spain (Decision of the Tribunal on Objections to Jurisdiction), ICSID
Case No. ARB 97/7, 25 January2000. (2002) 5 ICSID Rep. p. 396.
30
For a recent example of the divergence in opinion see the majority decision in Daimler Financial Services AG
v Argentine Republic, ICSID Case No. ARB/05/1 Award 22 August 2012, and the Dissenting Opinion of Judge
Brower, 15 August 2012, id.
 Can the Case for Convergence be Made? 21
safeguard measures, Enabling Clause and special and differential treatment,
and so on. And, in the case of GATS, members annexed their exceptions to
MFN. So, while the Appellate Body can say as it did in Canada-Autos31 that
‘‘any advantage’’ means ‘‘any advantage’’ thus suggesting that an MFN provi-
sion would cover procedural and dispute settlement as well as substantive
rights, it did so within an already circumscribed framework and in the context
of a self-contained dispute settlement system with no real chance of it being
altered by application of an MFN provision.32 Thus, the relevance of WTO
law for this aspect of investment law seems marginal.
However, there are other areas where overlap between the two fields does seem
to have greater implications. In particular, Professor Kurtz refers to the linkage
between trade in services and investment,33 an area where questions can also be
raised about the application of MFN. Can WTO Members invoke MFN under
GATS Article II in respect their service providers established in the territory of
another Member (Mode 3) to obtain benefits provided by that other Member
under a bilateral investment treaties with a third state? If that can be done, the
WTO Member might be able to get the benefit of remedial provisions available
under that bilateral investment treaties that would not be available to it under
GATS. The question, which again is fundamentally one of treaty interpretation—
of both the GATS and the relevant bilateral investment treaties—requires further
investigation and it is an indication that there are issues in the relationship of the
trade and investment regimes that still have to be fully explored.
In sum, Jürgen Kurtz’s analysis of treaty interpretation by investment tribu-
nals is a very important contribution both to the question of how investment
tribunals interpret treaties and to treaty interpretation more generally. And
while, as I have suggested, the approach of the WTO Appellate Body may
not be the only model for investment tribunals, it certainly provides a basis
for assessing the approach of those tribunals and the potential for guidance.
However, the Appellate Body deals with a discrete family of agreements, with
common parties and with, often, interconnected provisions. Investment agree-
ments are separate agreements, which share common provisions, but which
sometimes have different histories or derive from different models.

The role of science in determining whether regulation

is rational
The final area I wish to comment on is the treatment in The World Trade
Organization and International Investment Law: Converging Systems of the use

31
WTO Appellate Body Report, Canada—Certain Measures Affecting the Automotive Industry, WT/DS139/AB/
R, WT/DS142/AB/R (adopted 19 June 2000) at para. 79.
32
For a discussion of these issues see DONALD MCRAE, MFN in the GATT and the WTO, 7 ASIAN J. WTO INT
HEALTH L. POL. 1–23 (2012).
33
KURTZ, supra note 1, Chap. 2, III at 43.
22 Jerusalem Review of Legal Studies
of science in determining what constitutes rational regulation for the purposes
of applying the ‘‘fair and equitable treatment’’ standard in BITs.34 It is a novel
and intriguing section, and as Professor Kurtz recognizes there are risks in
drawing too close an analogy between investment agreements and WTO law.
As he points out,35 the WTO treatment of science is in the context of a regime
(the SPS Agreement) that mandates reference to science, but there is no such
hard standard in investment law and one should not readily imply one. And he
thus limits his analysis to circumstances where a state itself has justified its
actions by reference to science.
The objective of trying to build some system into the way in which science is
treated by investment tribunals particularly in the context of application of the
fair and equitable treatment principle is laudable. But, is the actual application
of the tests developed in the WTO in the context of the SPS Agreement for
deciding whether a measure is based on science so readily transferable and are
they in fact easy to apply?36
At the starting level, the basic propositions can be readily stated: a state sets
its own level of protection, and then it is for a panel to determine whether the
measure adopted meets the requirements of WTO law. But the measure itself
may be indicative of a level of protection. And the power of the panel, as set
out in Continued Suspension37 ‘‘to determine whether that risk assessment is
supported by coherent reasoning and respectable scientific evidence and is,
in this sense, objectively justifiable’’ hides much complexity. The problem is
that the role of the scientist and the role of the panel are hard to distinguish,
and when there is divided scientific opinion on what basis can a panel really
choose? So far, the cases before the WTO under the SPS Agreement have been
relatively easy cases, but the expectation behind the SPS Agreement that it is
possible to find that a measure is based on science may prove more difficult as
time goes on.
Professor Kurtz praises the Methanex tribunal38 for its analysis of scientific
evidence (although he criticizes it for failing to apply this analysis in its appli-
cation of the ‘‘fair and equitable treatment’’ standard).39 And, it is true that in
Methanex the tribunal did a very creditable job of reviewing whether an ob-
jective scientific analysis had been done.40 But, what if in Methanex the science
had been much more divided and there had been significant counter studies
giving an alternative view? How then can a decision-maker make a choice
without effectively deferring to the views of some scientists?

34
KURTZ, supra note 1, Chap. 4.
35
Id. II at 134.
36
See generally, JOANNE SCOTT, THE WTO AGREEMENT ON SANITARY AND PHYTOSANITARY MEASURES (2007).
37
WTO Appellate Body Report, Canada—Continued Suspension of Obligations in the EC-Hormones Dispute,
WT/DS321/AB/R (adopted 14 November 2008) at para. 590.
38
Methanex v USA, Award of the Tribunal 3 August 2005.
39
KURTZ, supra note 1, Chap. 5, IV at 144.
40
Id. at 141–144.
 Can the Case for Convergence be Made? 23
The argument that a scientific basis to a regulatory measure or other action
of a government may be relevant to determining whether that measure has a
rational, objective basis and is not simply protectionist is an interesting one,
and Professor Kurtz makes a persuasive case. However, the real complexity lies
in the task of a tribunal to determine whether a measure is based on science
when the task essentially involves weighing conflicting scientific evidence. This,
too, is an area where much further work is needed.
The above, comments and queries should in no way detract from the fact
that Professor Kurtz’s book is a stimulating and evocative treatment of a field
of contemporary and growing importance. His thorough scholarship impresses
and his analysis and insight both inform and challenge. This is a very import-
ant work.