Engagement Between Trade and Investment: The Role of PTIAs

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