2 - Investment Chapters in PTAs and Their Impact on Adjudicative Convergence

Summary

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.