The growing tendency of including investment chapters in PTAs

Abstract

In the context of a rising number of preferential trade agreements (PTAs) that include investment protection provisions traditionally found in bilateral investment treaties (BITs), this chapter has a double purpose. First, based on an empirical analysis of 158 post-North American Free Trade Agreement (NAFTA) PTAs, we conclude that three categories of countries/regional economic integration organisations (REIOs) exist: those that regularly include investment chapters into their PTAs (Japan, the United States, Canada, the Association of Southeast Asian Nations (ASEAN), Australia and the Caribbean Community (CARICOM)), those that are finding their voice in international investment law and increasingly include such chapters (India, China, the European Union and Chile) and those that have an adverse position towards it (Brazil and the Southern Common Market (MERCOSUR)) or defer the inclusion of such provisions to further negotiations (African Plurilaterals, Morocco and South Africa). Second, we look at the drivers behind including/excluding investment protection provisions in/from PTAs. Some drivers will be readily apparent from the data collected for the purpose of answering the first question, while other drivers will need a more detailed discussion. These drivers are: (a) the weaker party accepts/uses templates of more powerful states; (b) states/REIOs wish to pursue more comprehensive and resource-friendly negotiations; (c) states/REIOs want to achieve a more coherent application of international economic law.