Tussle for policy space in international investment norm setting: The search for a middle path?

Abstract

The issue of international investment norm making has been the subject of considerable discussion and debate. The steady growth of bilateral investment treaties (BITs) along with investment norm setting in large mega regional trade agreements combined with recurring investor state disputes under these agreements bring out the growing relevance of this area of international economic law. States have begun to realise the importance of balancing their policy objectives with the rights of investors. Some of these approaches include the right to regulate provisions, increasing obligations on investors, departing from the original Investor-State dispute resolution mechanisms, etc. These approaches can be seen in the Trans-Pacific Partnership, the European Union proposal in the Trans-Atlantic Trade and Investment Partnership, Indian Model BIT, China–Australia Free Trade Agreement, and the Brazilian Co-operation and Investment Facilitation Agreements, which are the focus of the article. This article shows varying approaches and narratives on some of the core issues involved in investment disciplines and asks the question if there is a middle path in international investment norm making.