Last week, Andrew posted about the possibility of an exception to investment obligations, as part of the TTIP. I'm interested to see where exceptions of this sort can take us in terms of preserving policy space, but I think we should also consider the obligations themselves as part of this debate. Too often, it seems to me, the scope of these obligations is overlooked. In this regard, here's former USTR Charlene Barshefsky and China's former chief WTO negotiator Long Yongtu, writing in the WSJ in support of a US-China BIT:
A bilateral investment treaty would unleash far more investment in both directions. It would ensure that the U.S. and China provide each other's investors with the ability to buy, sell and maintain ownership and control of investments without discrimination on the basis of national origin. It would also establish clear investment criteria by, for example, narrowing national security reviews to those sectors of essential security relevance. A treaty would limit barriers to investment related to intellectual property, technology transfer, technical standards and the treatment of state-owned enterprises. And it would establish credible legal mechanisms for resolving disputes.
The problem I have is that supporters of BITs often play up the non-discrimination obligation, and ignore broader obligations such as "fair and equitable treatment" and "indirect expropriation." (Another example is here.) I understand that it's difficult to get these concepts across in an op-ed. But it's not impossible, and this really is the main stumbling block for international investment law. If the rules were all just about non-discrimination, there wouldn't be many objections, in my view.
The broad scope of investment law went unnoticed for a long time, but now it's having a real impact and people are reacting, often negatively. As a result, I'm not sure we can go much further with new agreements until there is a debate about the implications of existing rules. Maybe exceptions are a way to provide a check, or maybe the obligations themselves should be reconsidered. But somehow, the effect of the system on domestic policy-making has to be taken up in the public debate. They are trying in the EU, but I'm not sure to what extent the key points are getting across.
If someone can figure out a way to get these ideas into a published op-ed I would be very grateful, because all of my submissions on these issues get rejected!
