Trans-Pacific Partnership and the Multilateralization of International Investment Law

Author:Congyan Cai
Pages:385-413
SUMMARY

The Multilateralization of international investment law has seen repeated disappointments over the past six decades. Current negotiations regarding the Investment Chapter within the Trans-Pacific Partnership Agreement may bring about a new promise for this process. It is necessary for the TPP negotiating parties to have a proper understanding of this recent history. Circumstances under which the... (see full summary)

 
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TPP and International Investment Law
385
VI JEAIL 2 (2013)
Congyan Cai
The multilateralization of international investment law has witnessed repeated
disappointments over the past six decades. Current negotiations regarding the
    
       
     
under which the TPP negotiations are conducted are quite different from those
       
    
of international investment law. Since TPP negotiations have multilateral
     
   

of the past
two decades. These initiatives include a new principle of Special and Differential
     
code of conduct of transnational corporations, and an appellate mechanism for

Keywords
  





Professor of International Law at Xiamen University, China. B.A., LL.M., Ph.D. (Xiamen) This paper is the fully
revised version of the author’s presentation titled, “Trans-Pacific Strategic Economic Partnership Agreement: Issues
and Prospects” sponsored by Law Research Institute at the University of Seoul and Korea Branch of the International
Law Association on October 26, 2012. Much gratitude should be extended to participants for their comments
and discussions. This research is also supported by China’s Ministry of Education through the Program for New
Century Excellent Talents in University and by Xiamen University through the Fundamental Research Funds for the
Central Universities. The author may be contacted at: caicongyan@xmu.edu.cn / Address: Faculty of Law, Xiamen
University, Xiamen City, Fujian Province 361005 China.
DOI: http://dx.doi.org/10.14330/jeail.2013.6.2.03
ARTICLES
386 Congyan Cai

The General Agreement on Tariffs and Trade (GATT) was created more than 60
years ago to establish a multilateral framework to govern international trade. To
date, no such multilateral framework exists vis-a-vis transnational investment.
1
As such, the prevailing approach revolves around bilateral trade agreements.
Nevertheless, efforts to multilateralize investment rules continue to develop. The
Trans-Pacific Partnership (TPP) negotiations may be one such effort that would
successfully multilateralize international investment rules.
2
   
Economic Partnership (hereinafter P3 Agreement) among Chile, New Zealand and
Singapore. It was convened in 2002 and joined by Brunei Darussalam in 2005. Then,

(hereinafter P4 Agreement), which came into force in 2006.
3
According to the
provision of open accession of the P4 Agreement,
4
the United States (2008), Australia
(2008), Peru (2008), Vietnam (2008), Malaysia (2010), Mexico (2012) and Canada (2012)
have joined in negotiations towards signing a TPP Agreement.
5
The P4 Agreement itself does not include an Investment Chapter. However, it
provides that negotiations on investment regime shall start no later than two years
after entry into force of that Agreement.
6
On June 12, 2012, the negotiated text of the
Investment Chapter was released.
7
This paper analyzes the effect the TPP Investment Chapter negotiations may
have on the multilateralization of international investment law. It is divided into
five parts including an Introduction and Conclusion. Part two will begin with
some theoretical debates regarding multilateralization. Part three will trace several
1 J. Morin & G. Gagné, What Can Best Explain the Prevalence of Bilateralism in the Investment Regime?, 36 Intl J. Pol.
Econ. 53 (2007).
2 R. Dattu, A Journey from Havana to Paris: the Fifty-Year Quest for the Elusive Multilateral Agreement on Investment, 24
Fordham Intl l.J. 275 (2000).
3 See Trans-Pacific Strategic Economic Partnership Agreement, available at http://www.mfat.govt.nz/downloads/trade-
agreement/transpacific/main-agreement.pdf (last visited on Sep. 9, 2013). For details, see M. Lewis, Expanding the P-4
Trade Agreement into a Broader Trans-Pacific Partnership: Implications, Risks and Opportunities, 4 asIan J. Wto &
Intl hEalth l. & Poly 401(2009).
4 P4 Agreement art. 20.6.
5 See Trans-Pacific Partnership Negotiations History, available at http://www.mfat.govt.nz/Trade-and-Economic-
Relations/2-Trade-Relationships-and-Agreements/Trans-Pacific/index.php#history (last visited on Sep. 9, 2013).
6 P4 Agreement art. 20.1.
7 See Investment Chapter (leaked) of TPP negotiations, available at http://www.citizenstrade.org/ctc/wp-content/
uploads/2012/06/tppinvestment.pdf (last visited on Sep. 1, 2013).

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