Abstract
Mega-regionals are transforming and shaping the future of international investment law, concerning both the settlement of investment disputes and the substantive disciplines governing investor–state relations. Focusing on the latter, the present chapter shows how mega-regionals depart from the so far dominant European model of investment protection by going beyond crudely worded post-establishment protections for foreign investment. Instead, Mega-regionals pursue the twin policy goals of investment liberalization through greater market access commitments and strengthening state control by ensuring host governments sufficient space to regulate in the public interest. In light of these policy goals, and considering the deeper reasons for structural changes to the investment rules in mega-regionals, the chapter argues that the models and conceptual foundations of mega-regionals build on prototypes first developed in the context of US and NAFTA investment practices. This suggests that the future of international investment law will be shaped to a considerable extent against the background of US experiences, rather than be forged anew by the mechanics of international diplomacy and negotiation.
The research leading to this chapter has received funding from the European Research Council (ERC) under the ERC Grant Agreement N° 313355, as part of the research project on ‘Transnational Private-Public Arbitration as Global Regulatory Governance: Charting and Codifying the Lex Mercatoria Publica’ (LexMercPub) carried out at the University of Amsterdam. The chapter is a revised and expanded version of a paper presented at the conference “Mega-Regionals and the Future of International Trade and Investment Law”, which was organized on 23 and 24 October 2014 in Dresden, Germany by the Research Centre for International Economic Law at the University of Dresden and the affiliated research project “Global TranSAXion”. The chapter was also published in (2016) British Journal of American Legal Studies 5(2):419–448. It was finalized based on material available as of 30 June 2016.
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Notes
- 1.
While consensus does not exist on the definition of what constitutes a mega-regional, certain characteristics are named in a recurring fashion: (1) the agreement is usually negotiated between a larger number of parties; (2) the countries represent a large share of global trade, gross domestic product (GDP), and population; and (3) the substance of the agreements goes beyond existing commitments under the WTO, regional trade agreements, and bilateral investment treaties (BITs). To this list, a fourth criterion is sometimes added, namely the ability of the agreement to transform into a pillar of economic governance. See Global Agenda Council on Trade and Foreign Direct Investment (2014), p. 7; see also Draper et al. (2014), p. 8.
- 2.
Shakespeare (1999), Act 5, Scene 1, 182–183.
- 3.
There are 12 countries that signed the TPP, namely Brunei, Chile, New Zealand, Singapore, Australia, Malaysia, Peru, the United States, Vietnam, Canada, Japan and Mexico. See Office of the United States Trade Representative, Trans-Pacific Partnership Agreement. https://ustr.gov/trade-agreements/free-trade-agreements/trans-pacific-partnership/tpp-full-text. Accessed 12 May 2016.
- 4.
The only indication as to the possible content of the investment chapter in TTIP stems from the proposal made by the EU. See Proposal of the European Union for Investment Protection and Resolution of Investment Disputes (12 Nov 2015). http://trade.ec.europa.eu/doclib/docs/2015/november/tradoc_153955.pdf. Accessed 6 Dec 2016 (EU TTIP Proposal).
- 5.
RCEP is negotiated among 16 countries: the 10 Members of ASEAN and six countries with which ASEAN has existing free trade agreements (FTAs), that is, Australia, China, India, Japan, Korea, and New Zealand. See Kawharu (2015).
- 6.
ASEAN Comprehensive Investment Agreement (signed 26 Feb 2009, entered into force 29 Mar 2012). http://cil.nus.edu.sg/rp/pdf/2009%20ASEAN%20Comprehensive%20Investment%20Agreement-pdf.pdf. Accessed 16 Dec 2016 (ACIA).
- 7.
These include, among others, the Agreement Establishing the ASEAN–Australia–New Zealand Free Trade Area (signed 27 Feb 2009, entered into force 1 Jan 2010). https://www.asean.fta.govt.nz/assets/_securedfiles/FTAs-agreements-in-force/AANZFTA-ASEAN/Agreement-Establishing-the-ASEAN-Australia-New-Zealand-Free-Trade-Area-1.pdf. Accessed 16 Dec 2016 (ASEAN–AUS–NZ FTA); the Agreement on Investment of the Framework Agreement on the Comprehensive Economic Cooperation between the Association of Southeast Asia Nations and the People’s Republic of China (signed 15 Aug 2009, entered into force 1 Aug 2010). http://fta.mofcom.gov.cn/inforimages/200908/20090817113007764.pdf. Accessed 16 Dec 2016 (ASEAN–PRC Investment Agreement); the Agreement on Investment under the Framework Agreement on Comprehensive Economic Cooperation Among the Governments of Southeast Asian Nations and the Republic of Korea (2 June 2009, entered into force 1 Sept 2009). http://www.thaifta.com/trade/askr/akia.pdf. Accessed 16 Dec 2016 (ASEAN–Korea Investment Agreement).
- 8.
Chapter 8 of the Canada–European Union Comprehensive Economic and Trade Agreement (29 Feb 2016). http://trade.ec.europa.eu/doclib/docs/2016/february/tradoc_154329.pdf. Accessed 16 Dec 2016 (CETA).
- 9.
Chapter 9 of the EU–Singapore Free Trade Agreement (8 Oct 2014). http://trade.ec.europa.eu/doclib/docs/2014/october/tradoc_152844.pdf. Accessed 16 Dec 2016 (EU–Singapore FTA).
- 10.
See the debate between Jagdish Bhagwati and Richard Baldwin on whether regionalism is considered a building block that helps achieve multilateralism or a stumbling block for multilateral world trade. Bhagwati considers regionalism as a stumbling block, whereas Baldwin finds that regionalism is a building block towards a multilateral trade regime. Bhagwati (2008), Baldwin (2006).
- 11.
See, e.g., Lang (2011).
- 12.
- 13.
For an in-depth analysis of the envisaged dispute settlement disciplines in mega-regionals, see Schill (2017).
- 14.
Apart from lingering efforts in Latin America (see the contributions in Fach-Gómez and Titi (2016)), the debate about reforming investment dispute settlement is particularly vivid since the EU tabled a proposal generally to abandon arbitration as a mechanism to settle investor–state disputes and instead to establish an “Investment Court System” which is to involve a permanent court-like body with an appeals mechanism and be staffed by judges who are appointed by the state parties to the agreement, not anymore by the parties to a concrete dispute. See EU TTIP Proposal, Subsection 4. In CETA, Canada and the EU have already agreed to include this court-like system (Article 8.29 CETA), but it is an open question whether the United States is going to accede to the EU proposal or insist on what has to be considered its preferred model for investment dispute settlement, that is, a reformed version of investor–state arbitration, as illustrated by the TPP (Section B: Investor–State Dispute Settlement). Moreover, how other countries the world over are going to react to the EU proposal is still much too early to tell.
- 15.
Elkins et al. (2006).
- 16.
See Vandevelde (2010).
- 17.
North American Free Trade Agreement (signed 17 Dec 1992, entered into force 1 Jan 1994), 32 ILM 296 and 695 (1993) (NAFTA).
- 18.
- 19.
Alschner and Skougarevskiy (2016). Similarly, other authors have shown that US positions and NAFTA practice are predominant in reshaping the future of international investment law. For an analysis of the impact of US positions on China see Berger (2013). For an analysis of the evolving EU position see, e.g., Reinisch (2014).
- 20.
The investment treaty practice of the United States has always been an exception in this respect, given that US BITs have regularly also extended national and most-favored-nation (MFN) treatment to market access. See Dolzer and Stevens (1995), pp. 56–57.
- 21.
US Model BIT (2004). http://www.state.gov/documents/organization/117601.pdf. Accessed 16 Dec 2016; US Model BIT (2012). http://www.state.gov/documents/organization/188371.pdf. Accessed 16 Dec 2016.
- 22.
See also Henckels (2016).
- 23.
UNCTAD (2006), p. 26.
- 24.
UNCTAD (2006), p. 25.
- 25.
See Articles 1102 and 1104 NAFTA.
- 26.
Other agreements, such as the ASEAN–PRC Investment Agreement, Articles 4 and 5(1), include an MFN provision that extends to the admission and establishment of investments, but limit the national treatment protection to the post-establishment phase only. Again other agreements provide pre-establishment national treatment without providing for MFN treatment; see Chapter 11, Article 4 ASEAN–AUS–NZ FTA. But see Chapter 8, Article 7 ASEAN–AUS–NZ FTA, where the agreement stipulates that parties shall enter into future discussions regarding the application of the MFN treatment.
- 27.
See further Articles 9.4 and 9.5 TPP; Articles 3 and 4 ASEAN–Korea Investment Agreement; Article 5 and 6 ACIA (all providing for pre-establishment rights with respect to both national treatment and MFN obligations). The ACIA additionally lists in Article 1(a) as one of its main objectives the “progressive liberalization of the investment regimes of Member States” and includes liberalization as a guiding principle in Article 2(a) and (b) “with a view towards achieving a free and open investment environment in the region”.
- 28.
Article 8.4 CETA.
- 29.
Articles 8.6 and 8.7 CETA.
- 30.
Article 8.15 CETA. See also Article 6, fn. 4 ACIA.
- 31.
General Agreement on Trade in Services (GATS) (signed 15 Apr 1994) 1869 UNTS 183, 33 ILM 1167 (1994).
- 32.
Article 9.3 EU–Singapore FTA. The national treatment provision extends non-discriminatory treatment to the post-establishment phase only and there is no provision on MFN treatment.
- 33.
Some agreements do not limit performance requirements. The ASEAN–PRC Investment Agreement and the EU–Singapore FTA are two agreements that seem to contain no limits on performance requirements.
- 34.
Mann (2007), p. 5.
- 35.
Agreement on Trade-Related Investment Measures (signed 15 Apr 1994) 1868 UNTS 14 (TRIMs).
- 36.
See, e.g., Chapter 11, Article 5 ASEAN–AUS–NZ FTA; Article 6 ASEAN–Korea Investment Agreement.
- 37.
See Article 7(2) ACIA. This article of ACIA also mentions that the member states will engage, within a certain time frame, in a joint assessment of existing performance requirements and consider whether additional commitments should be made in the future.
- 38.
The Canadian and US BIT models follow the approach established in NAFTA. See Article 7 of the Canada Foreign Investment Protection Agreement (2004). http://www.italaw.com/documents/Canadian2004-FIPA-model-en.pdf. Accessed 16 Dec 2016 (Canada FIPA (2004)); Article 8 US Model BIT (2012).
- 39.
Article 8.5 CETA. See also Article 9.10 TPP.
- 40.
See, e.g., Annex I of the NAFTA (Canada has excluded measures favoring its aboriginal peoples from the scope of Articles 1102, 1103 and 1106).
- 41.
See Annex IV of the NAFTA (Exceptions from Most-Favored-Nation Treatment).
- 42.
See Annex I of the NAFTA (Reservations for Existing Measures and Liberalization Commitments).
- 43.
See Annex II of the NAFTA (Reservations for Future Measures).
- 44.
See, e.g., Chapter 11, Article 12 ASEAN–AUS–NZ FTA; Article 6 ASEAN–PRC Investment Agreement; Article 9 ASEAN–Korea Investment Agreement; Article 8.15 CETA; Article 9.12 TPP.
- 45.
Article 9.12(6) TPP; Article 8.15(5) CETA; Article 9.2 EU–Singapore FTA.
- 46.
See, e.g., Section F, Article 8.18 CETA. Similarly, the EU’s TTIP negotiating mandate states that “ISDS shall not apply to market access provisions”. See Council of the European Union, Directives for the Negotiation on the Transatlantic Trade and Investment Partnership Between the European Union and the United States of America (17 June 2013), Brussels, p. 10. https://www.laquadrature.net/files/TAFTA%20_%20Mandate%20_%2020130617.pdf. Accessed 16 Dec 2016.
- 47.
For example, the US Model BIT (2012) provides a carve-out for taxation measures (Article 21), government procurement or subsidies or grants (Article 14(5)(a)–(b)); offers exceptions to the prohibition on certain performance requirements (Article 8(3)); and establishes an exception for certain measures related to intellectual property (Article 14(4)).
- 48.
Article 3(4) ACIA; Article 3(4) ASEAN–PRC Investment Agreement; Chapter 11, Article 1(2) ASEAN–AUS–NZ FTA; Article 2(2) ASEAN–Korea Investment Agreement. See further Article 8.15 CETA, which excludes government procurement and subsidies, or government support relating to trade in services, from the scope of the market access, national treatment, MFN treatment, and senior management and board of directors provisions. CETA’s treatment of taxation measures is more sophisticated than a simple carve-out and tries to balance taxation powers and investment protection in a more fine-tuned manner. See Article 28.7 CETA.
- 49.
See Sect. 2.3. above.
- 50.
Article 9 ACIA (provisions on national treatment and on senior management and board of directors shall not apply to non-conforming measures); Article 6 ASEAN–PRC Investment Agreement (national and MFN treatment shall not apply to non-conforming measures); Chapter 11, Article 12 ASEAN–AUS–NZ FTA (national treatment and, in the case of Laos, the prohibition on performance requirements do not apply to non-conforming measures); Article 9.12 TPP (national treatment, MFN treatment, performance requirements, and provisions on senior management and board of directors do not apply to non-conforming measures). Article 9.12 TPP includes these carve-outs and adds that national treatment, MFN treatment, and the rules on senior management and board of directors do not apply to government procurement, subsidies or grants. Article 9.3 EU–Singapore FTA exempts subsidies, grants, procurement and audio-visual services from the scope of the national treatment provision and also includes a special carve-out in relation to Singapore in Annex 9-D.
- 51.
Article 9.3(b) EU–Singapore FTA (audio-visual services); Article 8.2(3) CETA (audio-visual services for the EU).
- 52.
Article 8.2(3) CETA (cultural industries for Canada).
- 53.
Article 8.2(2)(a) CETA (air services).
- 54.
Article 8.3(1) CETA. The investment chapter does not apply to financial services, which is covered by Chapter 13 of CETA. This chapter also contains investment protection rules, but modifies them to grant additional policy space; see Articles 13.16 (prudential carve-out) and 13.17 CETA (specific exceptions). Article 9.3(3) TPP similarly contains a separate chapter dealing with financial services. Like CETA, this chapter also provides room for policy space that goes beyond that available in other areas. See Article 11.11 TPP (exceptions).
- 55.
Article 9.1 TPP, in the definition of an investment includes “other debt instruments and loans” but in a footnote clarifies that “some forms of debt, such as bonds, debentures, and long-term notes, are more likely to have the characteristics of an investment, while other forms of debt, such as claims to payment that are immediately due and result from the sale of goods or services, are less likely to have such characteristics.” In its Annex 8-B (Public Debt), CETA limits the application of investment treaty standards in respect of sovereign debt restructurings.
- 56.
Article 17(1)(a) ACIA; Article 16(1)(a) ASEAN–PRC Investment Agreement.
- 57.
Article 17(1)(b) ACIA; Article 10(1)(a) Canada FIPA (2004); Article 16(1)(b) ASEAN–PRC Investment Agreement.
- 58.
Article 17(1)(c) ACIA; Article 10(b) Canada FIPA (2004); Article 16(1)(c) ASEAN–PRC Investment Agreement.
- 59.
Article 17(1)(e) ACIA; Article 16(1)(e) ASEAN–PRC Investment Agreement.
- 60.
Article 17(1)(d) ACIA; Article 16(1)(d) ASEAN–PRC Investment Agreement.
- 61.
Article 2101 NAFTA incorporates GATT Article XX exceptions, but this article explicitly does not apply to the investment chapter. Article 10 Canada FIPA (2004), however, contains a general exceptions provision that is very similar to GATT Article XX.
- 62.
Article 9.10(3)(d) TPP provides a carve-out for the general prohibition for certain performance requirements when they, for example, are necessary to protect human, animal, or plant life or health.
- 63.
See Article 28.3(1) and (2) CETA.
- 64.
Article 28.3 (1) CETA.
- 65.
Article 28.3(2)(c) CETA.
- 66.
Article 9.3(3) EU-Singapore FTA.
- 67.
See, e.g., Article 1113 NAFTA; Article 17 US Model BITs (2004) and (2012); Article 18 Canada FIPA (2004).
- 68.
See, e.g., Article 1113 NAFTA; Article 17 US Model BITs (2004) and (2012); Article 9.15 TPP; Article 19 ACIA; Article 15 ASEAN–PRC Investment Agreement; Chapter 11, Article 11 ASEAN–AUS–NZ FTA; Article 17 ASEAN–Korea Investment Agreement.
- 69.
Article 8.1 CETA defines “enterprise of a Party” as “an enterprise that is constituted or organized under the laws of that Party and has substantial business activities in the territory of that Party […].” It also stipulates that an “investor” means “a Party, a natural person or an enterprise of a Party, other than a branch or a representative office, that seeks to make, is making or has made an investment in the territory of the other Party.” This excludes shell companies from the protection of the agreement. Similarly, Article 9.1 EU–Singapore FTA.
- 70.
See, e.g., Art. 1113 NAFTA; Article 17 US Model BITs (2004) and (2012); Article 19 ACIA.
- 71.
Article 18(2) Canada FIPA (2004); Article 1113(2) NAFTA; Article 19 ACIA; Article 15(1) ASEAN–PRC Investment Agreement; Chapter 11, Article 11 ASEAN–AUS–NZ FTA; Article 17(2) ASEAN–Korea Investment Agreement. The “denial of benefits”-clauses in the ASEAN+ agreements make further special exceptions for Thailand and the Philippines. See Article 15(2) and (3) ASEAN–PRC Investment Agreement; Chapter 11, Article 11(3) and (4) ASEAN–AUS–NZ FTA; Article 17(4) and (5) ASEAN–Korea Investment Agreement.
- 72.
Schill (2012), pp. 310–321.
- 73.
Schill (2012), pp. 283–288.
- 74.
Schill (2012), pp. 283–288.
- 75.
See, e.g., Article 8.1 CETA. The ACIA and ASEAN+ agreements all define “covered investment” subject to the “laws, regulations, and national policies” of a Member State. See Article 4 ACIA. See also Article 1 ASEAN–Korea Investment Agreement; Chapter 11, Article 2 ASEAN–AUS–NZ FTA; Article 1 ASEAN–PRC Investment Agreement.
- 76.
Article 9.2 EU–Singapore FTA.
- 77.
Article 8.9 CETA; Section 2, Article 2 EU TTIP Proposal.
- 78.
See Chapter 11, Article 9(1)(a)−(d) ASEAN−AUS−NZ FTA; Article 12 ASEAN−Korea Investment Agreement; Article 14(1)(a)−(d) ACIA; Article 9.6(1)(a)−(d) EU−Singapore FTA; Article 9.8(1)(a)−(d) TPP; Article 8.12(1)(a)−(d) CETA; see also Article 8(b) ASEAN−PRC Investment Agreement (instead of referring to due process of law, the agreement requires that the measure be “in accordance with applicable domestic law, including legal procedures”).
- 79.
While the ACIA and ASEAN−AUS−NZ FTA both include an annex in regard to the expropriation provision (see Annex 2—Expropriation and Compensation of the ACIA; paras 1–4 of the Annex on Expropriation and Compensation of the ASEAN−AUS−NZ FTA), the ASEAN−PRC and the ASEAN−Korea Investment Agreement do not have annexes.
- 80.
Annex B of the US Model BITs (2004) and (2012). The decision to limit the scope of the expropriation provision to that which exists at customary international law is arguably in response to the expansive interpretations given by arbitral tribunals in the NAFTA context. See, e.g., S.D. Myers v. Canada, UNCITRAL, Partial Award on the Merits (13 Nov 2000), para. 282.
- 81.
Annex 12-B of the Draft Trans-Pacific Partnership (June 2012). http://www.citizenstrade.org/ctc/wp-content/uploads/2012/06/tppinvestment.pdf. Accessed 16 Dec 2016.
- 82.
Annex 9-A of the TPP now only links the minimum standard of treatment provision to customary international law. Article 9.8 TPP (Expropriation), by contrast, does mention customary international law, but only in a footnote clarifying the term “public purpose”, which it delimits to a concept in customary international law.
- 83.
Annex B, para. 2 US Model BITs (2004) and (2012). This type of a limit may also have been developed in response to expansive interpretations by arbitral tribunals. See, e.g., S.D. Myers v. Canada, para. 281, where the tribunal asserted “in legal theory, rights other than property rights may be ‘expropriated’”.
- 84.
Annex 2, para. 1 ACIA; Annex on Expropriation and Compensation, para. 1 ASEAN−AUS−NZ FTA; Annex 9-B, para. 1 TPP.
- 85.
Annex 8-A, para. 1 CETA.
- 86.
See Penn Central Transportation Co v. New York City, 438 US 104 (1978) where the US Supreme Court developed the criteria for deciding whether a particular governmental action constitutes a “taking” of property within the meaning of the Fifth Amendment of the US Constitution.
- 87.
See Annex 2, para. 3 ACIA; Annex on Expropriation and Compensation, para. 3 ASEAN−AUS−NZ FTA; Annex 8-A, para. 2 CETA; Annex 9-A, para. 2 EU−Singapore FTA; Annex 9-B, para. 3(a) TPP.
- 88.
Annex 9-B, para. 3(a)(i)−(iii) TPP. This is also the wording Annex B.13(1) of the Canada FIPA (2004).
- 89.
The factors to be considered vary from agreement to agreement. Most of the agreements require that the economic impact of the government action be taken into account (see, e.g., Annex 9-A EU−Singapore FTA; Annex 8-A CETA). Some agreements additionally require the duration of the measure to be assessed (see Annex 9-A, para. 2(a) EU−Singapore FTA; Annex 8-A, para. 2 CETA). Variations of the need for “reasonable investment-backed expectations” of the investor are also found in several agreements. ACIA and the ASEAN−AUS−NZ FTA, for example, offer a narrower rendition and account for whether the “government action breaches the government’s prior binding written commitment”, whereas the EU−Singapore FTA appears to offer broader coverage by requiring an examination into the extent to which the measure “interferes with the possibility to use, enjoy or dispose of the property” (see Annex 2, para. 3(b) ACIA; Annex on Expropriation and Compensation, para. 3(b) ASEAN−AUS−NZ FTA; Annex 9-A, para. 2(b) EU−Singapore FTA). The character of the governmental action is a factor that seems to run through most Mega-Regionals but, again, slight variations exist. While some of the agreements follow the US and TPP approach and simply refer to “the character of the government action”, other agreements append a disproportionality analysis (see Annex on Expropriation and Compensation, para. 3(c) ASEAN−AUS−NZ FTA; Annex 2, para. 3(c) ACIA).
- 90.
Annex 2, para. 4 ACIA. See Annex on Expropriation and Compensation, para. 4 ASEAN−AUS−NZ FTA. See also Annex 1, para. 3 EU TTIP Proposal.
- 91.
Annex 8-A, para. 3 CETA.
- 92.
See Annex B US Model BITs (2004) and (2012); Annex B.13(1) Canada FIPA (2004).
- 93.
Annex 8-A, para. 3 CETA (emphasis added).
- 94.
See Desierto (2015).
- 95.
Article 11(1) ACIA. See also Article 5 ASEAN−Korea Investment Agreement.
- 96.
Article 11(2)(a) ACIA.
- 97.
Article 7 ASEAN−PRC Investment Agreement has the same fair and equitable treatment standard with one modification. Instead of using “requires”, the ASEAN−PRC Investment Agreement states “fair and equitable treatment refers to the obligation of each Party not to deny justice in any legal or administrative proceedings” (emphasis added). Article 5 US Model BIT (2004), for example, uses the word “includes”.
- 98.
See NAFTA Free Trade Commission, Notes of Interpretation of Certain Chapter 11 Provisions (31 July 2001).
- 99.
See Article 5(2)(a) US Model BITs (2004) and (2012). See also Article 5 Canada FIPA (2004). The ASEAN+ agreements also tie the fair and equitable treatment provision to that which is required by customary international law. See, e.g., Chapter 11, Article 6(2)(c) ASEAN−AUS−NZ FTA; Article 5(2)(c) ASEAN−Korea Investment Agreement.
- 100.
Article 9.6(2) TPP.
- 101.
Article 9.6(2)(a) TPP. See also Article 5(2)(a) US Model BITs (2004) and (2012).
- 102.
Article 8.10 CETA.
- 103.
This resonates of certain NAFTA arbitral tribunals’ interpretation of Article 1105(1). Cf. Glamis Gold v. United States, UNCITRAL, Award (8 June 2009), paras. 614–616.
- 104.
The article also stipulates that the Tribunal “may take into account” the legitimate expectations of the investor.
- 105.
The EU−Singapore FTA also makes use of lists to concretize what fair and equitable treatment means. It differs from CETA in an important aspect. Unlike CETA, it includes a breach of the investor’s legitimate expectations as part of the closed list (Article 9.4(2)(e) EU−Singapore FTA). CETA, by contrast, merely provides that a tribunal “may take into account” the investor’s legitimate expectation in interpreting the listed elements (Article 8.10(4) CETA) (emphasis added).
- 106.
Newcombe and Paradell (2009), p. 414.
- 107.
Article 1109(4) NAFTA.
- 108.
See, e.g., Article 9.7(2) EU−Singapore FTA; Article 9.9(4) TPP; Article 8.13(3) CETA; Article 13(3) ACIA.
- 109.
The US Model BIT (2012) does not contain a balance-of-payments exception. See Article 7 (Transfers) US Model BIT (2012).
- 110.
See Article 2104 NAFTA.
- 111.
Article 16 ACIA. These restrictions must be (a) consistent with relevant International Monetary Fund provisions; (b) avoid unnecessary damage to the commercial, economic, and financial interests of another Member State; (c) not exceed those necessary to deal with the circumstances; (d) applied for a limited period of time and (e) taken in a nondiscriminatory manner (Article 16(2) ACIA). See also Article 11 ASEAN−Korea Investment Agreement; Article 11 ASEAN−PRC Investment Agreement; Article 8(4) ASEAN−AUS−NZ FTA.
- 112.
Chapter 29, Article 29.3 TPP; Article 28.5 CETA. See also Article 9.7(3) EU−Singapore FTA.
- 113.
Chapter 29, Article 29.3 TPP; Article 28.5 CETA.
- 114.
Article 9.7(3) EU−Singapore FTA.
- 115.
Article 1131 NAFTA.
- 116.
Article 30(3) US Model BITs (2004) and (2012).
- 117.
See, e.g., Articles 8.10(3) and 8.44(3)(d) CETA. See also Article 9.33 EU−Singapore FTA. Likewise, the EU TTIP Proposal envisages a provision that will allow the Committee to adopt decisions interpreting investment protection provisions in cases where “serious concerns arise as regards matter of interpretation”. See Subsection 2, Article 13(5) EU TTIP Proposal.
- 118.
Article 9.23, para. 11 TPP; Article 9.33 EU−Singapore FTA; Subsection 2, Article 10 EU TTIP Proposal; Article 8.44(3)(e) CETA.
- 119.
Article 8.28 CETA.
- 120.
For a discussion of these trends, see Schill and Jacob (2012).
- 121.
See Broude (2013).
- 122.
Chapter 16 of the Canada−United States Free Trade Agreement (2 Jan 1988). http://www.international.gc.ca/trade-agreements-accords-commerciaux/assets/pdfs/cusfta-e.pdf. Accessed 16 Dec 2016.
- 123.
See Articles 207(1) and 3(1)(e) Treaty on the Functioning of the European Union.
- 124.
See European Commission, Overview of FTA and Other Trade Negotiations (27 Jan 2015). http://trade.ec.europa.eu/doclib/docs/2006/december/tradoc_118238.pdf. Accessed 16 Dec 2016.
- 125.
See further the contributions in Trakman and Ranieri (2013).
- 126.
See Sect. 3 above.
- 127.
Schill and Jacob (2012), p. 143.
- 128.
See Article 29.5 TPP.
- 129.
See Sect. 3 above.
- 130.
Vandevelde (2005), p. 171.
- 131.
See Sect. 4.1 above.
- 132.
Falsafi (2008), p. 45. This is not an entirely new trend, however. In fact, the Friendship, Commerce and Navigation (FCN) treaties the United States had started concluding in the nineteenth century traditionally addressed investment and trade aspects in one agreement.
- 133.
After all, the socialization of lawyers and the sociological composition of those who engage in the negotiation and application of investment rules influences their substance. Cf. Schill (2011).
- 134.
- 135.
See Sect. 3.1.2 above.
- 136.
European Commission, European Commission Launches Public Online Consultation on Investor Protection in TTIP, Press Release (27 Mar 2014). http://europa.eu/rapid/press-release_IP-14-292_en.htm. Accessed 16 Dec 2016. The European Commission received almost 150,000 responses to its online consultation. See European Commission, Report on the Online Public Consultation on Investment Protection and Investor-to-State Dispute Settlement (ISDS) in the TTIP (1 Jan 2015), Commission Staff Working Document 2015 SWD (2015) 3 final. http://trade.ec.europa.eu/doclib/docs/2015/january/tradoc_153044.pdf. Accessed 16 Dec 2016.
- 137.
EU TTIP Proposal.
- 138.
See, e.g., Article 9.24(1) (Transparency of Arbitral Proceedings) TPP; Annex 9-C, Article 1 (Rules on Public Access to Documents, Hearings and the Possibility of Third Persons to Make Submissions) EU−Singapore FTA; Article 8.36 (Transparency of Proceedings) CETA.
- 139.
See, e.g., Article 9.24(2) (Transparency of Arbitral Proceedings) TPP; Annex 9-C, Article 2 (Rules on Public Access to Documents, Hearings and the Possibility of Third Persons to Make Submissions) EU−Singapore FTA; Article 8.36 (Transparency of Proceedings) CETA.
- 140.
See, e.g., Article 9.23(3) TPP; Annex 9-C, art. 3 (Rules on Public Access to Documents, Hearings and the Possibility of Third Persons to Make Submissions) EU−Singapore FTA.
- 141.
See the contributions in Schill (2015).
- 142.
See Schill (2016).
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Schill, S.W., Bray, H.L. (2017). The Brave New (American) World of International Investment Law: Substantive Investment Protection Standards in Mega-Regionals. In: Rensmann, T. (eds) Mega-Regional Trade Agreements. Springer, Cham. https://doi.org/10.1007/978-3-319-56663-4_6
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