Towards a New Regulatory Paradigm under Recent FTA Investment Chapters?

  • Elsa Sardinha
  • International Challenges in Investment Arbitration
    Edited by Mesut Akbaba and Giancarlo Capurro

  • 2018

This chapter examines the resurgent emphasis on states’ inherent power to regulate for public welfare objectives, so-called ‘return of the state’, in the investment chapters of three FTAs—the recently signed, but not yet in force, Comprehensive Progressive Trans-Pacific Partnership (CPTPP), the now in force Canada–EU Comprehensive Economic Trade Agreement (CETA), and the recently revised final text of the EU–Singapore FTA Investment Protection Agreement (EUSFTA).

The discussion contends with the genesis of states’ concerns about preserving their policy space and deconstructs the suggestion, in some circles, of a new ‘return of the state’ regulatory approach to ISDS. The chapter undertakes a comparative analysis of the latest developments in the investment chapters of the CPTPP, CETA, and EUSFTA, with a view to identifying convergences and divergences between these agreements with respect to the right to regulate. The discussion traces back the origins of the language employed in the four principle investment protections: (1) fair and equitable treatment; (2) expropriation; (3) national treatment; and (4) most-favoured nation treatment. This analysis also attempts to elucidate what effect, in practice, the more detailed language employed in these treaties can hope to have in investor-state awards rendered pursuant to these terms, and forecasts broader implications about the future of international investment law.

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