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Unpublished Paper
Public Policy in International Investment and Trade Law: Community Expectations and Functional Decision-Making
ExpressO (2013)
  • Diane A Desierto

This article uses a contextual policy-oriented approach to assess how the standing debate on a State's regulatory freedom has been treated within international investment law (e.g. case-by-case interpretation of variant treaty design in each case), in contrast with how the issue of domestic regulatory autonomy in international trade law has evolved towards coordination (e.g. attempted harmonization of the same set of instruments). The article submits a different view from many primarily trade law/investment law scholars (and other systemic integrationists who idealize a seamless shift from trade law to investment law), who have postulated that this fundamental issue of State regulatory freedom can and should be similarly blended and resolved in both treaty regimes. The article contends that there are different contextual, institutional, and policy factors that govern and influence decision-making and adjudicative reasoning in both regimes, which militate against an overreliance on the perceived substitutionality between treaty regimes by tribunals and scholars, in order to justify specific interpretations of the width and nature of a State's public policy prerogatives within these treaties. Using the International Covenant on Economic, Social, and Cultural Rights (ICESCR) as a public policy heuristic, the article then reflects on the likely systemic differences in the treatment and mediation of the ICESCR to justify a State’s assertion of regulatory freedom within each treaty regime. A more careful appreciation and sober assessment of contextual differences alongside opportunities for convergence in these treaty regimes would, in the author’s view, create a more constructive and transparent dialectic for achieving public policy objectives within the international trade and investment governance systems.

  • regulatory freedom,
  • public policy,
  • human rights,
  • International Covenant on Economic Social and Cultural Rights,
  • GATT,
  • investment treaties,
  • systemic integration,
  • treaty interpretation
Publication Date
November 4, 2013
Citation Information
Diane A Desierto. "Public Policy in International Investment and Trade Law: Community Expectations and Functional Decision-Making" ExpressO (2013)
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