This book explores engagement between the trade and investment law regimes and the extent to which this is being driven by Preferential Trade and Investment Agreements (PTIAs). It provides an empirical analysis of engagement between the two regimes using data from 60 PTIAs and 60 Bilateral Investment Treaties concluded between 2005-2019 to see whether PTIAs result in increased engagement and whether they are doing so over time. The book explores eight of the factors identified as evidencing inter-regime engagement. These chapters look at when engagement is appropriate and to what extent it is appropriate in relation to each of these areas. Based on the findings of this book’s empirical and comparative law analysis of PTIAs, BITs, and the trade and investment law regimes, the book examines whether the conclusion of PTIAs compared to BITs has resulted in increased levels of engagement between the trade and investment law regimes.
This book does not put forth the view that convergence between trade and investment is always appropriate, but provides recommendations as to how treaties may be formulated and interpreted in a manner that takes inter-regime engagement into account with a view to ensuring the harmonious simultaneous development of the two regimes. The question of the future direction for engagement between the trade regime and the investment regime is very topical in light of changes to the architecture of both regimes at present.
Author(s): Niall Moran
Series: European Yearbook of International Economic Law, 18
Publisher: Springer
Year: 2022
Language: English
Pages: 306
City: Cham
Acknowledgements
Contents
Chapter 1: Introduction
1.1 Introduction
1.2 The Meaning of `Engagement´
1.3 Trade and Investment Agreements
1.3.1 The Evolution of Preferential Trade and Investment Agreements
1.3.2 Joint or Separate Negotiations for Trade and Investment
1.3.3 The Impact of PTAs and IIAs
1.3.3.1 PTAs/PTIAs
1.3.3.2 The Impact of IIAs
1.3.4 The Impact of Concluding Investment Chapters Within PTIAs
1.4 Factors Driving and Limiting Engagement
1.4.1 Treaty Provisions Driving Engagement
1.4.1.1 Provisions That Represent Shared or Similar Norms Between the Regimes
1.4.1.2 Provisions That Minimise Conflict Between the Regimes
1.4.1.3 Provisions That Harmonise Procedural Rules Between the Regimes
1.4.1.4 Provisions That Refer to the Applicability of Rules of International Law and the Suitability of Arbitrators with Knowl...
1.4.2 Other Factors Driving Engagement
1.4.2.1 Overlapping Jurisdiction
1.4.2.2 Interdependence Between the Regimes
1.4.2.3 Sociological Factors
1.4.3 Factors Limiting Engagement
1.5 Cross-Regime References in Trade and Investment Disputes
1.5.1 WTO Law Influence in Investment Law and Vice Versa
1.5.2 References to WTO Law in Disputes Under Other Chapters of PTIAs
1.5.3 References to Public International Law in Trade and Investment Disputes
1.5.4 Making Cross-Regime References
1.5.4.1 Textual and Contextual Differences
1.5.4.2 The Differing Purposes of Agreements
1.5.4.3 Systemic Differences
1.6 Aims and Structure
1.6.1 Aims
1.6.2 Structure
References
Part I: Empirical Study
Chapter 2: An Empirical Analysis of Levels of Engagement in PTIAs and BITs
2.1 Introduction
2.2 Measuring Engagement Between PTIAs and BITs
2.2.1 Case Selection
2.2.2 Operationalising Engagement
2.2.2.1 Host State Flexibility
Agreements Referring to WTO Law in Their Preamble
Preambles Balancing Investment Promotion with Other Regulatory Objectives
Incorporation of Treaty Exceptions
Article Providing an Exception for Health or Environmental Measures
Expropriation Articles That Feature TRIPS Exceptions
Expropriation Articles That Refer to Public Policy Objectives
Performance Requirements Articles That Refer to WTO Law
Capital Withdrawal Safeguard
2.2.2.2 Dispute Settlement
Amicus curiae Submissions
Transparency in Proceedings
Avoidance of Any Conflict of Interest for Arbitrators
Reference to Arbitrators´ Knowledge of International Law or International Trade Law
Provision Providing for an Appellate Mechanism or Contemplating One
Provision Providing for Review of Dispute Settlement
Reference to `Applicable Rules of International Law´
Ability of the Parties to Issue Binding Interpretations of the Agreement
2.2.2.3 Substantive Provisions
National Treatment
Most-Favoured-Nation Treatment
Like Circumstances
Less Favourable Treatment
Fair and Equitable Treatment
FET with a Reference to Customary International Law
Expropriation
Free Transfer of Funds
Additional Norms
2.3 Results
2.3.1 Results for the Entire Set of Agreements
2.3.2 Conclusions for the Entire Set of Agreements
2.3.3 Summary
References
Part II: Substantive Provisions
Chapter 3: Nondiscrimination Provisions
3.1 Introduction
3.2 Nondiscrimination Provisions in the Trade and Investment Law Regimes
3.2.1 National Treatment
3.2.1.1 National Treatment Provisions in the Trade Regime
The GATT
Other WTO Agreements
3.2.1.2 National Treatment Provisions in the Investment Regime
3.2.1.3 Interpreting National Treatment Provisions
Interpreting National Treatment at the WTO
Interpreting National Treatment Under IIAs
3.2.2 Most-Favoured Nation Treatment
3.2.2.1 MFN Provisions in the Trade and Investment Regimes
3.2.2.2 Interpreting MFN Provisions
Interpreting MFN Treatment at the WTO
Interpreting MFN Treatment under IIAs
3.2.3 Likeness
3.2.3.1 Likeness in the Trade and Investment Regimes
3.2.3.2 Interpreting Likeness
Interpreting Likeness at the WTO
Japan-Alcoholic Beverages II
EC-Asbestos
EC-Seal Products
Argentina-Financial Services
Interpreting Likeness in IIAs
The Narrow Approach
The Broad Approach
The Economic Sector or Competition-Based Approach
3.2.3.3 The Role of Competition in Likeness Analysis
The Competition-Based Approach V. the Regulatory Context Approach
An Example
3.2.4 Less Favourable Treatment
3.2.4.1 LFT in the Trade Regime and Investment Regimes
3.2.4.2 Interpreting LFT
The Effects of a Measure v. Discriminatory Intent
LFT, Nexus Requirements, and the Appropriate Standard of Review
3.3 Nondiscrimination Provisions and Engagement
3.3.1 At What Stage Should the Regulatory Purpose of a Measure Be Considered?
3.3.1.1 Consideration of Regulatory Purpose at the Likeness Stage
3.3.1.2 Consideration of Regulatory Purpose at the LFT Stage
The Detrimental Impact Approach
Discrimination Stemming Exclusively from a Legitimate Purpose
The Dominant Purpose Approach
The de Minimis Approach
3.3.1.3 Consideration of Regulatory Purpose Under Treaty Exceptions
3.3.2 The Extent of Engagement
3.3.3 Cross-Regime References
3.3.3.1 Why Make Cross-Regime References?
3.3.3.2 Have There Been Cross-Regime References?
3.3.3.3 Caveats When Making Cross-Regime References
3.3.4 The Role of PTIAs
References
Part III: Host State Flexibilities
Chapter 4: Treaty Exceptions
4.1 Introduction
4.2 Treaty Exceptions in the Trade and Investment Law Regimes
4.2.1 Treaty Exceptions Provisions
4.2.1.1 Treaty Exceptions in the Trade Regime
4.2.1.2 Treaty Exceptions in IIAs
4.2.2 Interpreting `Necessity´ at the WTO
4.2.2.1 Why Defences Under Article XX(a) and (b) Have Failed
4.2.2.2 Has the Right Balance Been Struck?
4.2.3 Interpreting `Necessity´ in IIAs
4.2.3.1 The Orrega Vicuña Approach
4.2.3.2 The Common Derivation Approach
4.2.3.3 Other Approaches
4.3 Treaty Exceptions and Engagement
4.3.1 The Extent of Engagement
4.3.2 Cross-Regime References
4.3.2.1 Why Make Cross-Regime References?
4.3.2.2 Have There Been Cross-Regime References?
4.3.2.3 Making Cross-Regime References
4.3.3 The Role of PTIAs
Annex: The Success Rate of General Exceptions Defences at the WTO
References
Chapter 5: Preambles and the Right to Regulate
5.1 Introduction
5.2 A. Preambles in the Trade and Investment Law Regimes
5.2.1 The WTO Agreements
5.2.2 Investment Law
5.2.2.1 Older Style Agreements
5.2.2.2 More Recent Agreements
5.2.3 Interpreting the Object and Purpose of Trade and Investment Agreements
5.2.3.1 Preambles at the WTO-Checks on the Textual and Holistic Approaches
5.2.3.2 Interpreting IIA Preambles
5.3 Engagement and Object and Purpose
5.3.1 Comparing the Content of Preambles Across the Regimes
5.3.2 Cross-Regime References
5.3.2.1 Why Make Cross-Regime References?
5.3.2.2 Have Tribunal Made Cross-Regime References?
5.3.2.3 Making Cross-Regime References
5.3.3 Preambles and the Role of PTIAs
5.3.4 Why Balanced Preambles Are a Good Thing
References
Part IV: Procedural Provisions
Chapter 6: Appellate Mechanisms
6.1 Introduction
6.2 Appellate Mechanisms
6.2.1 Appeal in the Trade Regime
6.2.1.1 Rules and Procedures of the Appellate Body
6.2.1.2 Rules and Procedures of DSMs Elsewhere in the Trade Regime
6.2.2 Appeal in Investment Law
6.2.2.1 Rules and Procedures for Appeal Under the EU´s Investment Court System
6.2.2.2 Rules and Procedures of a Multilateral Investment Court
6.3 Appellate Mechanisms and Engagement
6.3.1 The Extent and Desirability of Engagement
6.3.1.1 Convergence Factors
6.3.1.2 The Creation of a Permanent Two-Tier System
6.3.1.3 The Multilateralisation of Proceedings
6.3.1.4 The Profile of Adjudicators and Their Independence
6.3.1.5 Greater Predictability and Consistency in the Jurisprudence
6.3.1.6 Procedural Rules
6.3.2 Divergence Factors
6.3.2.1 Fundamental Divergences
6.3.2.2 The Profile and Backgrounds of Adjudicators
6.3.2.3 Tribunal Selection
6.3.2.4 The Role of Committees
6.3.2.5 Learning from the AB Experience
6.3.3 The Role of PTIAs
6.3.3.1 How PTIAs Facilitate Engagement
6.3.3.2 Will Opinion 2/15 Weaken Inter-Regime Engagement?
References
Chapter 7: Amicus Curiae Briefs
7.1 Amicus Briefs in the Trade and Investment Law Regimes
7.1.1 Amicus Curiae Briefs in the Trade Regime
7.1.2 Amicus Curiae Briefs and IIAs
7.2 Amicus Curiae Briefs and Engagement
7.2.1 How Similar Is the Content of Amicus Submissions in the Two Regimes?
7.2.2 Cross-Regime References and the Harmonisation of Amicus Provisions
7.2.2.1 Why Make Cross-Regime References?
7.2.2.2 Have There Been Cross-Regime References?
7.2.2.3 Caveats When Making Cross-Regime References
7.2.3 The Role of PTIAs
References
Chapter 8: Conclusion
References
Annex
