This article explores the phenomena of convergence and divergence in international economic law. It argues that both international trade and investment law have been forced to overcome a structural (legal-institutional) prioritization of market goals via competing social regulatory concerns. It is at this stress point that we argue that a powerful set of converging and procedurally orientated hermeneutics can be identified in the jurisprudence that, properly employed, could significantly bolster the elasticity and durability of state commitment to international economic law constraints. There remain, however, continuing textual and systemic divergences at play, which opponents will often dismiss for reasons of stasis or capture. On deeper analysis, however, key divergences may well be rational considering the unintended or adverse consequences that can flow from the unfiltered transplant of norms, doctrinal tests or institutional models.
Sungjoon Cho & Jürgen Kurtz,
Convergence and Divergence in International Economic Law and Politics,
Available at: https://scholarship.kentlaw.iit.edu/fac_schol/949