Re-Engaging States in the Development of the Investment Law Regime: The Potential Role of Trade Commissions Under Free Trade Agreements

Posted: 29 Jun 2016

See all articles by Amokura Kawharu

Amokura Kawharu

University of Auckland - Faculty of Law

Date Written: June 27, 2016

Abstract

This paper considers whether commissions of the State parties created under free trade agreements (FTAs) may provide a framework for States to take more responsibility for decision making within the international investment regime. One of the central features of the current regime, built primarily on the basis of bilateral investment treaties, is the lack of provision for institutionalized decision making by States. Rather, most decision making is carried out through ad hoc investor-State dispute settlement. This lack of involvement by States after treaties have been signed weakens the ability of the regime to respond to the many challenges it currently faces. At the same time, the promotion and use of trade commissions raises several questions, relating, inter alia, to their accountability, potential for conflict with judicial roles, and more widely, their place within an increasingly complex international legal system. Trade commissions have the potential to make a useful contribution to the governance of the investment regime but in assuming greater decision making responsibility, States will also need to ensure that their trade commissions act responsibly too.

Keywords: investment treaty reform; investor-State dispute settlement; free trade

Suggested Citation

Kawharu, Amokura, Re-Engaging States in the Development of the Investment Law Regime: The Potential Role of Trade Commissions Under Free Trade Agreements (June 27, 2016). Society of International Economic Law (SIEL), Fifth Biennial Global Conference, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2800908 or http://dx.doi.org/10.2139/ssrn.2800908

Amokura Kawharu (Contact Author)

University of Auckland - Faculty of Law ( email )

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