“Putting the Pieces Together … an EU Model BIT?”

2014 ◽  
Vol 15 (3-4) ◽  
pp. 679-704 ◽  
Author(s):  
August Reinisch
Keyword(s):  
North American ◽  
Dispute Settlement ◽  
Trade Agreement ◽  
Trade Agreements ◽  
External Trade ◽  
Investment Protection ◽  
General Overview ◽  
Investment Treaty ◽  
Investment Agreements ◽  
Scope Of Protection

Although the eu Commission as negotiation leader in the field of external trade matters which, after Lisbon, also include investment will not issue a Model Investment Treaty, a number of its statements together with reactions by the Council and the Parliament allow the observer to draw conclusions as to the likely content of such future agreements. In addition, those trade agreements with investment chapters which are already close to finalization, like the Canada-eu Comprehensive Economic and Trade Agreement (ceta), provide telling insights concerning the main features of an eu agreement on investment protection. This article provides a general overview of the expected content of eu treaties in the field of investment, comprising scope of protection, substantive standards, and dispute settlement. It concludes that future eu investment agreements are likely to contain the traditional short eu bit standards to which a number of specifications inspired by North-American practice will be added.

scholarly journals Is the Trans-Pacific Partnership's Investment Chapter the new "Gold Standard"?

2016 ◽  
Vol 47 (4) ◽  
pp. 503 ◽  
Author(s):  
José E Alvarez
Keyword(s):  
United States ◽  
Gold Standard ◽  
Dispute Settlement ◽  
Trade Agreement ◽  
The United States ◽  
Investment Protection ◽  
The North ◽  
Investment Treaty ◽  
Fair And Equitable Treatment ◽  
Equitable Treatment

The Trans-Pacific Partnership's Investment Chapter, and particularly its inclusion of investor-state dispute settlement (ISDS), has been the focus of considerable criticism both in the United States and New Zealand. Despite huge differences between these two potential TPP partners, the anticipated economic and political benefits offered by the pact – but also the threats to democracy posed – have been expressed in similar ways by distinct stakeholders in both countries. This essay describes how this chapter is the culmination of reforms to United States investment protection treaties that began with the investment chapter of the North American Free Trade Agreement in 1994 and that are now evident in the latest United States Model Bilateral Investment Treaty (of 2012). The TPP's Investment Chapter borrows heavily from prior United States efforts to narrow investor rights (as with respect to fair and equitable treatment), expand sovereign policy space, and incorporate certain rule of law reforms. For its critics, the pact falls far short of achieving a new "gold standard" precisely because it merely reforms – but does not abandon – ISDS for its enforcement.Editor's note: The text of this article was originally accepted for publication in March 2016. Recent statements by President-elect Donald Trump indicate that the United States will likely withdraw from further participation in the Trans Pacific Partnership and refrain from ratifying the agreed text. Without the United States' ratification, the agreement will not come into force. Despite this apparent ending to the Trans Pacific Partnership, the editors consider that Professor Alvarez's article remains an extremely useful analysis of investment provisions that may well serve as a model for the negotiation of such provisions in other mega-regional trade agreements in the future.

System-Building in Investment Treaty Arbitration and Lawmaking

2011 ◽  
Vol 12 (5) ◽  
pp. 1083-1110 ◽  
Author(s):  
Stephan W. Schill
Keyword(s):  
Free Trade ◽  
Dispute Settlement ◽  
State Level ◽  
Trade Agreement ◽  
International Investment ◽  
Foreign Investors ◽  
Investment Protection ◽  
The North ◽  
Investment Treaty ◽  
Investment Treaty Arbitration

Since the late 1990s investment treaty arbitration has developed into one of the most vibrant fields of international dispute settlement with now almost 400 known cases. It involves claims by foreign investors against host States for breach of obligations assumed under one of the more than 2700 bilateral investment treaties (BITs), under the numerous investment chapters in bilateral or regional free trade agreements, including the North American Free Trade Agreement, or under sectoral treaties such as the Energy Charter Treaty. All of these instruments offer comprehensive protection to foreign investors by setting down principles of substantive investment protection, including national and most-favored-nation treatment, fair and equitable treatment, full protection and security, protection against expropriation without compensation, and free capital transfer. They also allow investors to enforce these standards in arbitral proceedings directly against the host State, most commonly under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention). Investment treaty arbitration thereby not only empowers foreign investors under international law, but also introduces investment treaty tribunals as novel actors into the arena of international investment law. Although arbitration has been a classic form of dispute settlement on the State-to-State level, including for the settlement of investment-related disputes, modern investment treaty tribunals have wider jurisdiction and are more removed from State control than any of their predecessors.

A Paradigm Change: The CETA Investment Chapter

2021 ◽  
Vol 24 (3) ◽  
pp. 437-484
Author(s):  
Marc Bungenberg ◽  
August Reinisch
Keyword(s):  
Dispute Settlement ◽  
Trade Agreement ◽  
International Investment ◽  
Court System ◽  
International Investment Law ◽  
Investment Protection ◽  
Investment Law ◽  
Investment Agreements ◽  
The Eu

The Investment Chapter of the Comprehensive Economic and Trade Agreement (CETA) can be seen as an unofficial blueprint of future EU Investment Agreements and Chapters. It was developed under immense public pressure and had to fulfil multiple conditions resulting from the EU constitutional framework. This contribution highlights the political and juridical background of EU investment policy, and then analyses the most significant new approaches in international investment law - both with regard to substantive standards and investor-State dispute settlement - as exemplified in the CETA. With regard to the substance, it can be witnessed that states are more proactive in defining investment protection standards, leaving less discretion for adjudicators. With regard to dispute settlement, the EU managed to introduce a completely new Investment Court System (ICS) with preselected adjudicators and an appellate mechanism. In light of all these developments, this article argues that we are currently facing a complete change of paradigms in EU investment law, heading towards the EU’s long-term goal of establishing a Multilateral Investment Court (MIC).

The New Gold Standard? Empirically Situating the Trans-Pacific Partnership in the Investment Treaty Universe

2016 ◽  
pp. 339-373 ◽  
Author(s):  
Wolfgang Alschner ◽  
Dmitriy Skougarevskiy
Keyword(s):  
High Standard ◽  
Trade Agreement ◽  
International Investment ◽  
Legal Analysis ◽  
Investment Protection ◽  
Brics Countries ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
International Investment Agreements ◽  
Investment Agreements

The Trans-Pacific Partnership (TPP) has been labeled a ‘new, high-standard trade agreement’. But just how ‘new’ and ‘high’ are the standards it sets? To answer that question we combine traditional legal analysis with computational text comparisons situating the TPP in the universe of international investment agreements (IIAs). We find that the TPP investment chapter offers few truly novel features — 81% of its text is taken from prior American treaties. Compared to the majority of IIAs, however, the TPP goes beyond existing practice: it sets high levels of investment protection, explicitly safeguards host state sovereignty and establishes a sophisticated investment arbitration architecture. Nevertheless, the TPP is unlikely to revolutionize the IIA universe. Its innovations are open to circumvention given that older treaties remain in force parallel to the TPP. Moreover, as disagreement persists with Europe and BRICS countries, the TPP is unlikely to serve as a template for future multilateralization.

AN ANALYSIS OF THE EU’S INVESTMENT POLICY AFTER CETA: EFFECTS ON THE BULGARIAN ECONOMY

2020 ◽  
Author(s):  
Nikolay Marin ◽  
◽  
Mariya Paskaleva ◽  
Keyword(s):  
Bilateral Trade ◽  
Positive Impact ◽  
Value Added ◽  
Trade Agreement ◽  
Trade Agreements ◽  
Investment Policy ◽  
National Parliaments ◽  
Total Employment ◽  
Investment Protection ◽  
New Generation

In this paper we analyze the changes of the EU’s investment policy provoked by the mixed trade agreements. The EU’s investment policy has turned towards attaining bilateral trade agreements. One of these “new-generation” agreements is the Comprehensive Economic and Trade Agreement (CETA). It is in a process of being ratified by the national parliaments of the EU members. This study is focused on the general characteristics of CETA and the eventual problems posed by its regulatory and wide-ranging nature. We prove that the significance of this agreement pertains not only to the economic influence, that it will have on the European and Canadian economies, but CETA is also the first trade agreement to have been negotiated with a focus on investment protection and a change in the EU’s investment policy. The current study reveals the influence arising from the conclusion of CETA on the Bulgarian economy with an emphasis on electronic industry, machinery industry and manufacturing. We estimate both – the direct and indirect effects on Bulgaria’s exports, imports, value added and employment. In order to estimate the influence, we apply the multi-regional input-output model. It is proved that CETA will have a low but positive impact on the Bulgarian economy. After constructing different scenarios of development, we prove that the influence of CETA on the Bulgarian economy will amount to 0.010% GDP. The average total employment will be increased by more than 172 jobs in Bulgaria, which in turn, relative to the labor market, represents less than 0.01% of the total employment.

Three Salient Issues of the New Comprehensive Free Trade Agreements

2017 ◽  
Author(s):  
Stefan Griller
Keyword(s):  
Dispute Settlement ◽  
Free Trade Agreements ◽  
Trade Agreements ◽  
Settlement System ◽  
Investment Protection ◽  
National Courts ◽  
System P ◽  
Critical Account ◽  
Dispute Settlement System ◽  
The Relationship

The author argues that the mega-regionals are incorporating WTO standards on the removal of technical barriers to trade (TBT), but do not go much further. Consequently, domestic policies on consumer or environmental protection are inevitably affected. However, in this regard, the mega-regionals would not result in a substantive change. By contrast, the relationship between the removal of TBT and investment protection standards is qualified as poorly balanced, unclear, and creating fresh problems. This includes the possibility that damages might be awarded even in cases where the party to the agreement has correctly used its ‘right to regulate’. Moreover, a critical account of the investor-state dispute settlement system foreseen is offered. It is presented as unnecessarily complex, and creating unbalanced advantages for investors. The better alternative would be integrating national courts into the system.

The CETA Opinion of the European Court of Justice and its Implications—Not that Selfish After All

2019 ◽  
Vol 22 (3) ◽  
pp. 503-521 ◽  
Author(s):  
Christian Riffel
Keyword(s):  
Dispute Settlement ◽  
Trade Agreement ◽  
European Court Of Justice ◽  
Court System ◽  
Eu Law ◽  
Investment Protection ◽  
Constitutional Principle ◽  
Court Of Justice ◽  
European Court ◽  
The Eu

Abstract In Opinion 1/17, the European Court of Justice (ECJ) found the investment court system compatible with European Union (EU) law. The ruling concerned the mechanism in the Comprehensive Economic and Trade Agreement (CETA) but the Court’s reasoning is equally applicable to other investment courts as established, for example, in the EU’s investment protection agreements with Singapore and Vietnam. This outcome was far from clear, given that in the past the accession to international dispute settlement bodies regularly foundered on the autonomy of the EU legal order. The present article parses the CETA Opinion and explores its implications. It particularly focuses on autonomy as a constitutional principle and its advancement in Opinion 1/17. Importantly, the ECJ accepted the superiority of a court created by international agreement in relation to the said agreement. Furthermore, it clarified that it is not prerequisite for the Court to rule first on the meaning to be given to an act of EU law before that act can be the subject matter of an investment dispute. Finally, the pdrerogative of the EU to autonomously set the level of protection of a public welfare goal must be secured in a treaty for the EU to join it.

Crafting the International Economic Order: The Public Function of Investment Treaty Arbitration and Its Significance for the Role of the Arbitrator

2010 ◽  
Vol 23 (2) ◽  
pp. 401-430 ◽  
Author(s):  
STEPHAN W. SCHILL
Keyword(s):  
Dispute Settlement ◽  
International Economic Order ◽  
International Standards ◽  
Dispute Settlement Mechanism ◽  
Commercial Arbitration ◽  
Party Autonomy ◽  
The Public ◽  
Investment Protection ◽  
Investment Treaty ◽  
Investment Treaty Arbitration

AbstractInvestment treaty arbitration, unlike commercial arbitration, is not a purely private dispute settlement mechanism that is entirely subject to party autonomy and limited in its effects to the parties to the proceedings. Rather, it fulfils a public function in influencing the behaviour of foreign investors, states, and civil society more generally by crafting and concretizing international standards of investment protection. Investment treaty arbitration thus implements and operates as part of a public system of investment protection. Arbitrators, as a result, incur obligations not only towards the parties to the proceedings, but vis-à-vis the whole system of investment protection. These obligations can be conceptualized as part of the public law implications of investment treaty arbitration and affect, inter alia, the role and status of arbitrators in investment treaty disputes, the procedural maxims that such arbitrations should follow, and the way arbitral awards should be crafted.

scholarly journals The Two Noble Kinsmen: Internal and Legal Transparency in the WTO and Their Connection to Preferential and Regional Trade Agreements

2016 ◽  
Vol 5 (2) ◽  
pp. 539-569
Author(s):  
Maria Panezi
Keyword(s):  
Decision Making ◽  
Dispute Settlement ◽  
Trade Agreement ◽  
Trade Agreements ◽  
Regional Trade Agreements ◽  
Regional Trade ◽  
Preferential Trade ◽  
Institutional Processes ◽  
Multilateral Trading System ◽  
The Impact

Abstract The proliferation of Preferential Trade Agreements (PTAs) and Regional Trade Agreements (RTAs) has given rise to significant debate on the need to measure, understand and possibly regulate the impact these agreements have on the multilateral trading system under the umbrella of the World Trade Organization (WTO). This article will discuss the two Doha Transparency Mechanisms (legal transparency) regarding regional trade agreements, as they appear in two General Council decisions from 2006 and 2010. I will argue based on a closer look and a consistent interpretation of Paragraph 10 of the Doha Ministerial Declaration that there is another type of transparency that is relevant to the discussion on PTAs/RTAs, namely “internal transparency.” “Internal transparency stricto sensu” highlights the significance of trust in the WTO institutional processes, such as negotiations, decision-making, dispute settlement and trade monitoring that the representatives of developing member states should have in order for the WTO system to function productively. “Internal transparency lato sensu” is introduced in this article as an extension to include any decision-making deficits, exclusionary and asymmetrical outcomes specifically in the area of unchecked Preferential Trade Agreement proliferation. Instead of a conclusion, the article offers some proposals for more a meaningful progress in the WTO with respect to PTAs/RTAs The proposals aim at raising the profile of both legal and internal of transparency and posit that raising the profile of one will inevitably lead in improvements in the other.

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