This chapter examines investment-related aspects of the energy–environment nexus. State actions against fossil fuel investments often have an environmental cause, raising the issue of policy space under the investment regime. The doctrine of ‘police powers’ provides grounds for qualifying some pro-environmental interventions as non-compensable non-expropriatory measures. In addition to seeking policy flexibilities, many States wish energy investors to voluntarily bear social responsibility on the environmental front. As a result, a number of IIAs provide for responsible business conduct, bringing some changes to the ‘investor vs. State’ asymmetry in the investment system. A surge in renewable energy ISDS cases in the last ten years is another noticeable trend. High upfront costs of renewable energy projects recoupable in a long run necessitate FIT or other long-term benefits to investors. But when the government suddenly cancels or cuts promised incentives, this frustrates investors’ legitimate expectations under IIAs but may also be welcomed under trade law as a way of getting rid of distortive subsidies. Thus, some discrepancy or tension between the trade and investment regimes can arise.

Mexico’s 1982 announcement that it would be unable to make its debt payment set off Latin America’s “Lost Decade.” All over the region, economies stagnated and millions of people suffered. The international response, spearheaded by the United States, International Monetary Fund, and World Bank, initiated market reforms that would cut state spending, privatize state-run industries, dismantle tariffs, and construct free trade agreements. The neoliberal era had been launched. The reforms and trade agreements that accompanied this new era reflected continued U.S. hegemony but also the ways in which economic power was supplanting military power. Latin America initially found few alternatives to the neoliberal model. At the end of the twentieth century Latin American economies were growing once again, but in many cases they were only returning to where they had been before the crash. With millions feeling economic pain, neopopulist leaders gained momentum. Commitment to free trade agreements also waned as leaders like Donald Trump questioned their benefits. This chapter explores the region’s political economy of the last 50 years.

After several years of negotiations, twelve Pacific Rim countries signed, in February 2016, the Trans-Pacific Partnership (TPP), which is one of the highest profile Preferential Trade Agreements (PTAs) of the last decade. After US withdrawal in January 2017, a revised “Comprehensive and Progressive TPP” was signed by the other eleven negotiating Parties in March 2018. The CPTPP makes no modifications to the original Chapter 2 so the chapter remains in its entirety applicable to relations among the Parties. References in the chapter are to the original TPP unless context requires otherwise. Annex 2-D of the TPP is comprised of hundreds of pages of carefully negotiated tariff commitments that are accompanied by many chapters that seek to regulate measures such as trade remedies, sanitary and phytosanitary measures, technical barriers to trade, competition policy, state-owned enterprises and electronic commerce. Together, these provisions were part of a complex framework that sought to ensure that the agreed tariff elimination would not be undermined or nullified by other measures. However, the TPP was designed to be more than just a traditional trade deal.

Mary Pat Brady’s chapter poses an alternative approach to hemispheric fiction by reading not according the scales of concentric geometries of space (local, regional, national, transnational), but instead reconceptualizing what she terms “pluriversal novels of the 21st century.” She argues for attending to the complexly mixed temporalities, perspectives, and languages of novels that reject the dualism of monoworlds (center/periphery) for the unpredictability of stories anchored in multiple space-times. While this is not an exclusively 21st-century phenomenon, she shows that pluriveral fiction has flourished recently, as works by Linda Hogan, Jennine Capó Crucet, Julia Alvarez, Gabby Rivera, Karen Tei Yamashita, Ana-Maurine Lara, and Evelina Zuni Lucero demonstrate.

Here we have four case studies from North America, Central America, and South America to assess the links between peaceful borders and the occurrence and proliferation of illicit transnational flows. All the borders involved are peaceful with important variation across the cases in terms of historical background and trajectories. First, we study the North American Borders (US-Canada and US-Mexico), especially in the period since the establishment of NAFTA in 1994. Second comes the Northern Triangle of Central America, which includes the borders of Guatemala, El Salvador, and Honduras since the end of the civil wars in the early 1990s. Third, we turn to the Colombian borders with Venezuela, Ecuador, Peru, and Brazil, with a particular focus on the last twenty years that witnessed the tensions between Colombia, Ecuador, and Venezuela, and the long civil war that involved Colombia and the FARC until 2016. Finally, we analyze the Tri-Border Area of the Southern Cone of South America, which includes the borders of Argentina, Brazil, and Paraguay, especially since the establishment of MERCOSUR in 1991.

This chapter provides an introduction to preferential trade agreements or regional trade agreements. It considers trade creation and trade diversion within a supply and demand framework of PTAs. It then summarizes the examples of the European Union, NAFTA, Mercosur, ASEAN and its AFTA, and the Trans-Pacific Partnership.

The author compares the practice of trade and investment adjudicators in relation to the requirement to interpret a treaty ‘in the light of its object and purpose’. He begins by identifying a range of issues and choices that adjudicators are confronted with in this regard, and the practical barriers to any significant degree of judicial interaction or cross-fertilization between trade and investment adjudicators with respect to those issues. He then shows that notwithstanding the absence of judicial interaction, there is a remarkable degree of convergence in the legal reasoning of trade and investment adjudicators on diverse issues. Among the issues, he includes the basis for identifying a treaty's object and purpose, the need to balance competing objectives, the recognition of some of the limitations of purposive reasoning, and even standard forms of consequentialist arguments. The final section argues that such convergence is most easily explained by the theory that many aspects of legal reasoning and treaty interpretation derive not from knowledge of prior precedent and judicial practices, but from common sense and the nature of the judicial function.

This chapter focuses on the first stage in which some level of convergence between the adjudication of trade and investment disputes might be observed: treaty design. After an analysis of 144 PTAs the authors conclude that there is a rising trend of including investment chapters with ISDS mechanisms into PTAs. However, this trend is not uniform around the world. Therefore, if structural convergence is to occur between the two adjudicatory mechanisms, such convergence will not be global, but regional or local. The chapter then continues with a discussion of the potential implications of this phenomenon and argues that some level of convergence can be expected in two areas. First, the broader context and objectives of PTAs with investment chapters can have an influence on the reasoning of investment tribunals. Second, some level of converge might occur due to the interpretive functions of treaty committees. Nonetheless, convergence might be minimal due to: different epistemic communities; investment chapters often look like stand-alone BITs within a trade agreement; and the recent PTIAs require different qualifications for trade and investment dispute settlement decision makers.

In Chapter 8, Brenda Gunn looks to Canada as an example when she provides an analysis of how states have obligations to ensure the protection and promotion of Indigenous peoples’ rights in international investment agreements. Professor Gunn’s chapter begins by discussing some of the rights of Indigenous peoples that are potentially threatened by investment agreements, with a focus on land rights and the right to participate in decision-making on the basis of free, prior and informed consent. She concludes with a discussion of what measures need to be taken in investment agreements to ensure that Indigenous peoples’ rights are properly protected during the negotiation and implementation of investment agreements. This includes reference to the obligations of states and business enterprises to ensure that investment agreements protect Indigenous peoples’ rights while at the same time promoting foreign direct investment.

The chapter puts forward a theory on how to apply Art. V GATS to federal states. It advances the understanding that in federal states services trade should be liberalized on all levels of government.

The chapter analyzes the services commitments of three federal entities - the EU, United States and Canada through their trade agreements with Korea. Also NAFTA and CETA agreements are analyzed.

The chapter opens Part II of the book, which focuses on services trade liberalization in federal states. It explains some of the central issues and problems that relate to services liberalization by federal states. Special attention is paid to the EU, Canada and the United States.

Argues that despite hopes of sweeping change, Clinton ended up running a traditional, Cold War–style foreign policy. He used Cold War institutions like NATO, and acted to contain Russian power in the Balkans. Examines attempts to apply a Clinton Doctrine and its successes and failures. Argues that Clinton's interventions advanced a trend of wars of Muslim liberation.

This chapter shows that the rules of origin, which are meant to protect against the trans-shipment of foreign goods in free trade areas, are instead being used to promote particular industries. Strict rules of origin add to production costs by forcing firms to use more expensive parts and pay administrative costs. They also prevent firms from exporting to markets governed by different trade agreements and disproportionately hurt small firms. The ongoing renegotiation of NAFTA highlights the potential to expand the use rules of origin as a form of trade protection. The WTO currently has only limited disciplines on rules of origin. Clear and enforceable international regulations would help thwart the spread of complex rules.

In recent years, the negotiation of various trade agreements, such as the TPP, TTIP and CETA, has been accompanied by a large public backlash. Are we observing a paradigm shift in public perception of world trade or just temporary shifts in public support for the global economic order that oscillate around a more or less steady level? This chapter provides an overview of the major determinants of support for or opposition against PTAs and discusses how much room to maneuver policy makers have in designing such agreements. Furthermore, we discuss what policy makers can do to increase support for such agreements. We thereby focus on framing strategies and provide an analysis of which types of arguments are conducive to increase support for PTAs and how individuals process such information. This allows us to construct different future scenarios for policy makers to better align the negotiation and design of future trade agreements with the demand of their constituencies.

This chapter discusses the Court’s 1978 judgment, Simmenthal, where the Court declared that all national courts – including ‘lower’ national courts – were under an obligation to apply European law in place of contrary national legal obligations, even if national constitutional rules restricted such powers to the national constitutional court. This judgment is often understood as an important one in the ‘politics of judges’ within the European legal order, reflecting the Court of Justice’s efforts to develop more active cooperation with ‘lower’ national courts than with national constitutional courts. This chapter demonstrates that the logic of Simmenthal is also derived from the use of national courts to enforce treaty obligations as a substitute for inter-state retaliation, as demonstrated by similar aspects of the enforcement provisions of the Side Agreements of the North American Free Trade Agreement (NAFTA).

This chapter discusses the Court’s 1964 judgment, Dairy Products, where the Court declared that self-help mechanisms of reciprocity and retaliation, so important in many trade treaty systems, were comprehensively prohibited within the European legal order. This judgment is often rightly understood as marking an essential difference between European law and general international law. This chapter demonstrates that the principle announced in Dairy Products was also directly connected to the direct effect and supremacy doctrines of European law, again as shown by national court enforcement of treaty obligations in other treaty systems, and by the writings of judge Lecourt.