Key insights

• Treaty Interpretation and Good Governance

  • 🔍 Interpretation of national treatment in trade and investment treaties
  • 🔗 Convergence of rules within the same treaty and implications for good governance
  • 💡 Challenges and considerations in trade and investment relations

• Financial Measures and Legal Interactions

  • 💸 Discussion on financial measures in trade and productivity
  • 💬 Debate on countermeasures in investor-state treaties
  • 🕒 Timing relationship between trade and investment cases

• Modern Agreements and Negotiations

  • 🤝 Ambitious trade and investment negotiations
  • 🔍 Dealing with specific issues in modern agreements

• Challenges and Future Scenarios

  • 🌍 Continuation of the WTO system despite challenges
  • 🔄 Dependence of chaotic investor state world on smaller states' actions
  • ❓ Questioning the legitimacy of the investor state world
  • ⚖️ Balancing necessity defense and exceptions in investment protection

• Interactions and Conflicts

  • ⚔️ Discussion of potential conflicts and overlaps between investment and trade law
  • 🏛️ Influence of WTO jurisprudence on investment tribunals
  • ⚠️ Concerns about conflicts and negotiation complexities

• Convergence and Distinctions in Trade and Investment Law

  • 🔀 Convergence of trade and investment law regimes
  • 📈 Evolution of trade and investment law regimes
  • 🔄 Differences between centralized trade regime and decentralized investment regime
  • 🌐 Blurring of distinctions between trade and investment law regimes

• Regime Integration and Evolution

  • 🔗 Integrated negotiation and interpretation regimes
  • 🆕 New generation free trade agreements beyond traditional trade law
  • 🔄 Convergence of trade, investment, and economic regulatory areas in negotiations
  • 💼 Importance of commercial presence for trade and services
  • 🌐 Influence of investment law concepts on WTO disputes

• Complexities in Trade and Investment Law

  • ⚖️ Blurred lines between trade and investment law
  • 🤝 Private standing in dispute settlements
  • 📚 Artificial legal distinctions
  • ⚙️ Complexity and unpredictability of overlapping agreements

Q&A

• What are the key areas of focus in the discussions about trade and investment treaties?

  The key areas of focus in the discussions include the interpretation of national treatment in trade and investment treaties, the convergence of rules within the same treaty and its implications, remedies in investment treaties with a focus on monetary damages, the interconnectedness of trade and investment agreements, and their implications for good governance. Furthermore, the challenges and considerations in trade and investment relations, including security and economic aspects, are also addressed.

• What specific topics regarding trade and investment law are addressed?

  The discussions cover various specific topics, including financial measures in trade and productivity, debate on countermeasures in investor-state treaties and their impact on investments and policy decisions, differences between trade law and investment law, including the role of national treatment and remedy differences, questions about the timing relationship between trade and investment cases, and the influence of TBT article 2.1 on a current appeal in the WTO dispute.

• What aspects of trade and investment agreements are covered in the discussions?

  The discussions cover various aspects, including provisions in BITs and investment chapters that aim to give more protections to states, guidance to tribunals to avoid free-for-all interpretations, ambitious trade and investment negotiations like TPP or TTIP, efforts to clarify obligations in investment disciplines, intersection of trade and investment, and dealing with specific issues such as financial services, monopolies, and competition in modern agreements.

• What are the potential implications for the WTO system and the investor state world?

  The potential implications include the continuity of the WTO system despite challenges, dependence of the chaotic investor state world on the actions of smaller states, and the legitimacy question surrounding the investor state world. Conflicts involving environmental health cases and tobacco are highlighted as potentially problematic, and the need for negotiators to limit overlap and clearly delineate which agreement applies is emphasized. Balancing the necessity defense and exceptions in investment protection is deemed crucial, with the understanding that certain aspects should be approached differently based on the type of protection needed.

• What is the interaction between investment and trade law, and what potential conflicts and overlaps are discussed?

  The interaction between investment and trade law involves discussions about potential conflicts and overlaps, focusing on MFN clauses and the influence of WTO jurisprudence on investment tribunals. The consideration of separate epistemic communities for investment and trade law, cross-fertilization, and conflicts and negotiation complexities between the two disciplines are also discussed. Concerns about conflicts and negotiation complexities in these disciplines, as well as states' manipulation of concepts like the MFN clause, are addressed.

• How have trade and investment law regimes evolved and converged?

  The evolution of trade and investment law regimes has seen the convergence of the two fields, with distinct periods in their evolution, including convergence in the mid-1990s. The blurring of distinctions between trade and investment law regimes, the influence of jurisprudence and WTO experience on the design of investment chapters in free trade agreements, and the growing cases dealing with investment measures in the WTO exemplify this convergence.

• What are the challenges arising from the blurred lines between trade and investment law?

  The challenges arising from the blurred lines between trade and investment law include the complexity and unpredictability of overlapping agreements, the integration of regimes for negotiation and interpretation, and the convergence of trade, investment, and other economic regulatory areas in negotiations. Furthermore, the influence of concepts from investment law on WTO disputes and the increased complexity of dispute settlements due to artificial legal distinctions pose significant challenges.

• 00:00 The intersection of trade and investment law is becoming increasingly complex, with blurred lines between trade agreements and investment treaties. Private standing in dispute settlements, artificial legal distinctions, and the overlapping nature of agreements present significant challenges.
• 10:41 The integration of regimes for negotiation and interpretation, the emergence of new generation free trade agreements that go beyond traditional trade law, convergence of trade, investment, and other economic regulatory areas in the negotiations, the importance of commercial presence as a mode of delivery of trade and services, the influence of concepts from investment law on WTO disputes.
• 23:28 The evolution of trade and investment law regimes, the convergence of the two fields, and the distinctions between them.
• 33:52 The interaction between investment and trade law, as well as potential conflicts and overlaps, are discussed, with a focus on MFN clauses and the influence of WTO jurisprudence on investment tribunals.
• 44:22 The WTO system will continue despite challenges, while the chaotic investor state world may depend on the actions of smaller states. The legitimacy of the investor state world is in question, and conflicts involving environmental health cases and tobacco may be problematic. Harmonization of norms between the two areas may be helpful, but certain principles should be handled differently for trade and investment. It's up to negotiators to limit overlap and be clear about which agreement applies. Balancing the necessity defense and exceptions in investment protection is crucial, but certain aspects should be approached differently based on the type of protection needed.
• 53:12 Discussions around investor-state context, negotiations, clarification of obligations, crossovers between trade and investment, and dealing with specific issues in modern agreements.
• 01:04:11 The discussion covers various aspects of financial measures in trade, countermeasures in investor-state treaties, and the differences between trade law and investment law. The panelists address questions about the impact of countermeasures on investments, the role of national treatment in investor-state disputes, the remedy differences between trade and investment law, and the timing relationship between trade and investment cases.
• 01:16:34 The discussion covers various aspects of trade and investment treaties, including the interpretation of national treatment, convergence of rules within the same treaty, implications for good governance, remedies, and the interconnectedness of trade and investment agreements.