Remarks by Jennifer Thornton
In: Proceedings of the ASIL Annual Meeting, Band 112, S. 63-65
ISSN: 2169-1118
The United States and its TPP partners negotiated footnote 14 in the
context of a larger effort to clarify the scope of key substantive
obligations in the Agreement's investment chapter, with a view to better
insulating legitimate public welfare measures from challenge before
Investor-State Dispute Settlement (ISDS) tribunals constituted pursuant to
its terms. While some TPP partners originally advocated for the inclusion of
a "General Exceptions" article in the investment chapter along the lines of
GATT Article XX, the TPP parties ultimately concluded that ISDS tribunals
typically have accorded more deference to states when interpreting
non-discrimination obligations in investment agreements than has the WTO
Appellate Body when interpreting the GATT. For that reason, the TPP parties
negotiated a footnote directing tribunals to consider the rationale behind a
challenged measure when evaluating whether it breaches a non-discrimination
obligation, thus signaling that distinctions in treatment to achieve
legitimate public welfare objectives may be permissible under the chapter in
certain circumstances.