The new gold standard? Empirically situating the TPP in the investment treaty universe
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Graduate Institute of International and Development Studies | 23 November 2015

The new gold standard? Empirically situating the TPP in the investment treaty universe

by Dmitriy Skougarevskiy and Wolfgang Alschner

Abstract

The Transpacific Partnership (TPP) has been labelled a “new, high-standard trade agreement”. But just how “new” and “high” are the standards it sets? In this paper, we answer this question in relation to the TPP investment chapter. Combining traditional legal analysis with computational text comparisons we are able to situate the TPP in the wider universe of international investment agreements (IIAs). We find that the TPP investment chapter offers few truly novel features and is instead heavily influenced by prior American treaty practice — 82% of its text is taken from the USA-Colombia FTA investment chapter. The TPP investment disciplines do, however, sethigh standards that go beyond the majority of IIAs previously concluded by the TPP parties and beyond. Treaties coexisting in parallel to the TPP, such as NAFTA, have thus become largely redundant. Yet, given that the majority of overlapping agreements is still in force, the TPP standards are open to circumvention and challenge through forum shopping and normative conflicts. Finally, the TPP’s high standards arguably make it less rather than more likely that its investment chapter becomes a template for future multilateralization efforts. As disagreement persists with Europe and among BRICS countries as to what constitutes high standards in investment treaty design, multilateralization remains a distant goal.

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