Good morning. I would like to start by thanking, of course, Monica for the privilege of participating in this panel. I am certainly willing and hopefully able to present an alternative view to those that have been presented by the speakers before me.

The principle of non-discrimination lies at the core of international economic law (IEL). The norm is classically instantiated across IEL in two recurrent principles: national treatment (NT); and most favored nation (MFN). NT prohibits vertical discrimination—where a state affords preferable treatment to its own nationals as compared to foreigners. MFN prohibits horizontal discrimination—where a state treats nationals from one foreign state better (or worse) than nationals from another. These principles are foundational in IEL, and thus both well-known and well-considered. Indeed, until recently, the questions of the day across IEL concerned to what extent international trade and international investment law have moved beyond the non-discrimination paradigm. Yet, we see a renewed and growing importance in these classical norms in the practice of IEL over the past few years—in both treaty-making and dispute resolution. The purpose of this roundtable is to discuss non-discrimination's renewed centrality across IEL, and the extent to which the scope and contours of NT and MFN may be in flux across its varied regimes.

The United States and its TPP partners negotiated footnote 14 in the context of a larger effort to clarify the scope of key substantive obligations in the Agreement's investment chapter, with a view to better insulating legitimate public welfare measures from challenge before Investor-State Dispute Settlement (ISDS) tribunals constituted pursuant to its terms. While some TPP partners originally advocated for the inclusion of a “General Exceptions” article in the investment chapter along the lines of GATT Article XX, the TPP parties ultimately concluded that ISDS tribunals typically have accorded more deference to states when interpreting non-discrimination obligations in investment agreements than has the WTO Appellate Body when interpreting the GATT. For that reason, the TPP parties negotiated a footnote directing tribunals to consider the rationale behind a challenged measure when evaluating whether it breaches a non-discrimination obligation, thus signaling that distinctions in treatment to achieve legitimate public welfare objectives may be permissible under the chapter in certain circumstances.

The WTO general exceptions are crucial provisions that recognize that in some circumstances non-trade objectives will trump trade liberalization. That recognition flows from the fact that trade liberalization per se is not the purpose of the WTO; rather, trade liberalization is a means to achieve other objectives as specified in the preamble to the Marrakesh Agreement Establishing the World Trade Organization, such as raising standards of living and ensuring full employment. The predominant view is that the general exceptions are extremely difficult to satisfy. Indeed, I am aware of only three instances in which a respondent has successfully invoked GATT Article XX; of these, two are compliance proceedings, and one of those is under appeal. However, challenged measures typically fail to satisfy the requirements of the Article XX chapeau because they are discriminatory, and removing that discrimination provides a means of benefiting from the exception.

When it comes to trade law, it is true that there appear to be certain signs that we are moving back to non-discrimination and away from deeper forms of integration. However, this is possibly (and hopefully) only a limited and temporary shift. The strongest evidence of such a shift regards the apparent interpretation by the WTO Appellate Body (AB) of the key provisions in the TBT Agreement in such a way as to give prevalence to the national treatment standard in Article 2.1 over the necessity requirements in Article 2.2. For example, in US – Tuna II (Mexico) the AB found the U.S. dolphin-safe regulations under review inconsistent with Article 2.1, while also reversing the panel finding that the U.S. dolphin-safe regulations were inconsistent with Article 2.2. Such a result is surprising if one considers the general agreement among commentators that the disciplines embodied in the TBT Agreement (as well as in the SPS Agreement) went beyond the non-discrimination obligation of the GATT.

When it comes to the investment agreement (IA) between Japan and the EU or the EU member states, which means not only the investment part of the JEEPA but also the new investment treaty that would be concluded in the future, it is not considered that Japan and the EU have reached agreement without the absolute standards of treatment (e.g. FET and expropriation). Indeed, the text of the investment part of the JEEPA presented on the European Commission's website, which has not been legally verified yet as of today (April 5, 2018), has not stipulated said absolute standards, and such investment part is even titled as “Investment Liberalization” implying that only the non-discrimination provisions are provided. However, from the viewpoint of promoting investment as well as protecting the investors in the other countries, the level of liberalizing investment should not be decreased nor should the coverage of the standard or treatment be limited. In particular, FET is the most important standard of treatment for investors and most of them have relied on FET as their legal basis where they submit claims in the ISDS procedure. It is apparent that most countries also take the absolute standards important and necessary and the recent IAs including the CPTPP containing the absolute standards are considered to comply with such countries’ perspective.

Even when it comes to investment, despite appearances to the contrary, it does not seem to me that there is a shift to the non-discrimination principle. First, there is no doubt that absolute standards such as fair and equitable treatment or the provision on expropriation have by far overshadowed the relative standards, in particular national treatment. Second, while the MFN standard has, on the other hand, been a key provision in investment treaty arbitration, particularly as an instrument to expand the scope of the ISDS system (based on more favorable provisions found in third-party treaties), there are clear signs in recent investment treaties of the willingness to curtail the use of the MFN provision as a way to extend the procedural and substantive protections of investors. This seems to be the current position, for example, of both the United States and the European Union (EU). Third, when it comes to the apparent disappearance of the absolute standards of treatment in some of the treaties being negotiated by the European Union (such as with Japan), this is more simply due to a question of the nature of the EU external competence in commercial matters. In its recent opinion on the EU-Singapore FTA, the Court of Justice of the EU has determined that the EU does not have exclusive competence to conclude agreements covering non-FDI and ISDS. The EU has thus responded to such opinion by splitting investment protection (with ISDS) from the rest of the trade agreement, thus keeping investment liberalization (including market access and national treatment) in the latter. In this way, while the trade agreement will fall under the exclusive competence of the EU, the former will still require ratification by each member state. While it is not clear whether the backlash vis-à-vis investment protection and ISDS in some quarters within some of the member states will eventually lead to the end of EU investment treaties, a decision in this sense has not yet been taken by EU institutions.

In international investment law, some MFN claims mirror the use of MFN in international trade law. Other MFN claims are more expansive and controversial.

The nexus of human rights (HR) and finance has gained increased attention in recent years, particularly since the UN Human Rights Council's adoption of the UN Guiding Principles on Business and Human Rights in 2011. This article argues that human rights can and should be integrated in financing (“an integrative approach”), and proposes an approach based on five elements: (1) defining human rights considerations in explicit terms; (2) explaining the challenge we are confronted with in attempting to integrate human rights into financing; (3) articulating a justification for such integration; (4) identifying the nature and source of the applicable norms and human rights obligation to be integrated; and (5) outlining an applicable methodology and a practical operational approach.

I first became involved with international law while I was at university. After graduating, I decided to teach public international law. As an undergraduate, I particularly enjoyed this branch of study. I was attracted to it because it helped me to understand the problems, challenges, and breakthroughs in the field of international relations on a global scale. Therefore, after facing a competitive entry process, I joined the international law department of the Universidad de la República. It was a small department, but the university had produced some well-known scholars like Eduardo Jiménez de Aréchaga, who became a judge at the International Court of Justice, and Hector Gross Espiell, who served as a judge at the Inter-American Court of Human Rights.

Human rights advocacy today engages with criminal law at international and national levels with a new and rather conflicted posture. It is reorienting from an approach that primarily treated human rights as a shield from (unjust) prosecutorial and carceral power, and toward one calling for criminal penalties and vigorous prosecutions as a remedy for harms. The human rights abuses for which state prosecution is invoked today include not only past and present state violations, such as torture, but crimes by non-state actors, such as sexual and gender-based violence. At the same time, paradoxically, many rights groups are calling for the review and reduction of criminal regulation of a range of sexual and reproductive health practices, including abortion, consensual sexual conduct outside of marriage (same sex, heterosexual, and sex for money), and HIV transmission.

In 2015, the Institute for Policy Studies (IPS)—a progressive think tank on U.S. domestic and foreign policy—awarded its annual human rights awards to two criminal lawyers. The domestic award went to Daryl Atkinson, who advocates for the rights of convicted felons. Its international award went to Almudena Bernabeu, for what the IPS called her “successful prosecution of several of the worst Latin American perpetrators of crimes against humanity.” I do not think that the IPS was trying to be balanced by picking a lawyer working on behalf of the rights of the formerly incarcerated, on one hand, and a prosecutor, on the other. Rather, the organization sought to honor those it sees as promoting human rights. In the context of U.S. law, that means fighting for the rights of defendants and the convicted. For international law, it means the opposite.

I entered the field of human rights after practicing criminal defense law in New York City. I brought to my work a passion for justice for victims and survivors, particularly for those suffering from gender-based violence. My work as a defense lawyer made me acutely aware that suspects and defendants themselves can often be targeted for violence by agents of the state.

My comments today seek to highlight how social and economic rights advocates, particularly those concerned with the right to health, engage with ongoing debates about the role of criminal law in human rights. In particular, I emphasize how many “right to health” campaigns fight for the decriminalization of laws that result in the arrest of marginalized communities or health workers. This trend within right to health advocacy complicates what has been called the anti-impunity turn in human rights. In other words, although many scholars have correctly highlighted the rise of a carceral agenda in human rights, there is also ongoing, and perhaps growing, emphasis on decriminalization in the context of social and economic rights. This presentation gives a brief overview of the fight for decriminalization in the context of the right to health, highlights the challenges faced by advocates of in those campaigns, and reflects on some cautionary tales emerging from these fights for decriminalization.

The organizations I work with share a critical perspective toward the use of criminalization even as a response to violations of sexual and reproductive rights. This critical perspective holds, even as we operate in a field, and in political contexts, where the symbolic or expressive function of criminal law is often seen as a central aspect of its role in protecting rights, particularly for women. We have come to this critical perspective through reflection and experience: we see the practice of feminists resorting so often and so strongly to calling for criminalization and more severe penalties for gender-based violations, despite discouraging evidence of the impact of penal law. From this, we conclude that through our invocations to the penal state, we may be losing sight of our work to call out the state's responsibilities to address the root causes of the violations we seek to prevent and address.

In March 2018, Amnesty International published the Body Politics: Criminalization of Sexuality and Reproduction series, a new resource to equip its global movement, as well as partners and advocates, to challenge unjust criminalization of sexual and reproductive actions, decisions, and gender expression. The series includes a book-length primer that provides our overarching theoretical analysis regarding states’ resort to criminalized approaches to sexuality and reproduction, an overview of international human rights standards that apply to these issues, case studies, and substantive issue annexes on abortion, sex work, sex outside of marriage, adolescent sexuality, conduct during pregnancy (such as drug use), same-sex sexuality and HIV exposure, non-disclosure, and transmission.

Audience members asked questions regarding specific practices and in particular circled around the question of other ways forward—what other practices should be used to hold actors accountable for violence, especially the often still locally neglected problem of violence against women, as well as violence against people with diverse or stigmatized gender and sexual expressions and identities.

International arbitration developments and practice in Asia have not received the attention they deserve given the growth and increasing complexity of the field in that region during recent years. At the turn of the twenty-first century, international arbitration has flourished and prospered across Asia, and within its major constituent jurisdictions. The increasing importance of arbitration coincides with the growing cross-border investment in Asia. Investment continues to flow in from both Asian and Western economies. The capital inflow is accelerated by China's initiatives such as the Belt and Road Policy (“One Belt One Road”) and the Asian Infrastructure Investment Bank (AIIB). Our panel session surveyed and sought to shed light on the practice of international commercial as well as investment treaty arbitration, both of which are crucial dispute resolution vehicles to settle cross-border investment disputes. To try and cover this vast ground and keep the session engaging, a series of questions was quickly and successively posed to each panelist, who has expertise in international arbitration in one or more Asian jurisdictions, to highlight the little-known arbitration practice in her region and provide a cross-region comparative perspective.

Following the recovery of its economy in the aftermath of the Asian financial crisis at the end of the 1990s, South Korea has been in the forefront of development of international arbitration practice in Asia. As Korean companies have become global players, the number of international disputes is on the rise and dispute fora have also diversified over the years.