Preferential trade and investment agreements and engagement between the trade and investment law regimes

This thesis explores engagement between the trade and investment law regimes and the extent to which this is being driven by Preferential Trade and Investment Agreements. It provides an empirical analysis of engagement between the two regimes using data from 40 PTIAs and 40 Bilateral Investment Treaties to see whether PTIAs result in increased engagement and whether they are doing so over time. This thesis then examines four areas identified as key drivers of engagement and explores the question of when engagement is appropriate and to what extent it is appropriate in relation to each of these areas. It assesses the differing approaches to engagement adopted by parties in PTIAs as compared to other types of treaties in relation to the following four areas; preambles and the right to regulate, national treatment, likeness, and general exceptions. Based on the findings of this study’s empirical and comparative law analysis of PTIAs, BITs, and the trade and investment law regimes, this study examines whether the conclusion of PTIAs as compared to BITs has resulted in increased levels of engagement between the trade and investment law regimes. This thesis does not put forth the view that convergence between trade and investment is always appropriate. It does however provide recommendations as to how treaties may be formulated and interpreted in a manner that takes inter-regime engagement into account with a view to ensuring the harmonious simultaneous development of the two regimes.