Equivalent Primary Rules and Differential Secondary Rules : Countermeasures in WTO and Investment Protection Law

The chapter discusses a multi-sourced equivalent norm (MSEN) situation arising out of the parallel breach of an investment treaty and the WTO agreement. On the basis of a number of case studies, it considers how MSENs are affected by secondary rules of state responsibility that prima facie reflect precisely the systemic and harmonising perspective of the international legal order. It focuses, in particular, on the WTO-authorised suspension of TRIPS concessions that may breach investment obligations regarding IP rights, and on the converse scenario of countermeasures applied against investment protection obligations that might also breach WTO rules (using the US-Mexico soft drinks disputes in NAFTA and the WTO as a case study). It is suggested that the focus of trade and investment dispute settlement regimes on systemic strengthening may come at the cost of complicating the relationship and the resolution of conflicts with extra-systemic primary and secondary rules