The Trans-Pacific Partnership and Regulatory Space: A Comparison of Treaty Texts
Forthcoming, Journal of International Economic Law (2017)
Hebrew University of Jerusalem International Law Forum Working Paper No. 02-17
30 Pages Posted: 4 Apr 2017 Last revised: 14 Jun 2017
Date Written: April 2, 2017
The Trans-Pacific Partnership (TPP) agreement, signed in February of 2016, is an ambitious effort to set high standards on a ‘mega-regional’ level. This paper examines the TPP’s investment provisions with a focus on their most controversial dimension: the extent to which they constrain the ‘state regulatory space’ (SRS) of host states. We embrace the text-as-data approach by coding the TPP and other investment agreements among TPP parties on designed features related to SRS. The challenges presented by this coding exercise demonstrate some of the advantages of manual coding over automated methods when nuance and interpretation are required. With our data, we first compare the TPP to other agreements and find that it scores relatively high on SRS, although it falls within the range of existing agreements and does not seem to chart new territory in this regard. We then investigate which existing agreements are most similar to and dissimilar from the TPP with respect to SRS. Using regression analysis, we consider a number of factors to explain this variation and find that the TPP is most similar to agreements involving the United States, to agreements among Western Hemispheric countries, to other free trade agreements with investment chapters, and to more recent agreements. However, different factors seem to matter if we look only at provisions related to investor-state dispute settlement versus substantive provisions, implying that it is important to distinguish between the substantive and procedural dimensions of treaties.
Keywords: Investment protection, bilateral investment treaties, text-as-data, TPP, regulatory space, renegotiation
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