Article: Converging Towards NAFTA: An Analysis of FTA Investment Chapters in the European Union and the United States

Fontanelli, Filippo; Bianco, Giuseppe

doi:10.2139/ssrn.2507187

Cited by 8 publications

(2 citation statements)

References 8 publications

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“…Scholars looking at the evolution of investment treaties have observed a spread of the "NAFTA model," 106 a "NAFTA-ization," 107 or a "convergence towards NAFTA." 108 Political scientists speak of "policy diffusion" when prior policy choices in one country systematically condition policy choices in other countries. 109 As this section will underscore empirically, if defined as extensive copying of its text (around 50 percent or more), then the language of NAFTA Chapter 11 indeed diffused very successfully to other IIAs across the globe.…”

Section: The Diffusion Of the Nafta Chapter 11 Modelmentioning

confidence: 99%

The Negotiation, Diffusion, and Legacy of NAFTA Chapter 11: An Empirical Eulogy

Alschner

2023

Can. yearb. int. law

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Following a three-year post-termination transition period to bring investor-state arbitration disputes, the investment protections afforded by Chapter 11 of the North American Free Trade Agreement (NAFTA) finally expired in June 2023. Chapter 11 was one of the most litigated, cited, commented, and copied investment treaties. An important, but largely ignored, part of its legacy is how the making of NAFTA Chapter 11 shaped its subsequent successful diffusion. Combining traditional legal assessment with computational text-as-data analysis, this article shows how the give and take during the negotiations generated buy-in on the part of Mexico and Canada and emulation by Latin American countries who helped to spread NAFTA Chapter 11 language globally. The link between the making and diffusion of NAFTA Chapter 11 highlights the power of negotiated compromise: sharing the pen with others may sometimes be the most effective way to write the rules that come to shape the world.

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Section: The Diffusion Of the Nafta Chapter 11 Modelmentioning

confidence: 99%

The Negotiation, Diffusion, and Legacy of NAFTA Chapter 11: An Empirical Eulogy

Alschner

2023

Can. yearb. int. law

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“…221 As already mentioned, a focus on market access constitutes a trend that moves away from discrimination. It has been pointed out that European Union case law has gone "beyond discrimination" towards an analysis of whether a measure prevents or impedes market access so that that neutral nondiscriminatory regulation may be considered a restriction to trade in services, unless justified.…”

Section: B) Extending Market Accessmentioning

confidence: 99%

How Does International Economic Law Regulate the Right of Entry of Investments in Services?

Lubambo

2016

SSRN Journal

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This paper analyses the different ways that international law regulates the entry of foreign investments. By comparing the provisions in the regimes of trade and investment law, this paper argues that there is more liberalization in investment treaties and more investment regulation in the GATS than commonly thought. Different clauses reflect the varied techniques used to regulate the entry of foreign investments and investors in services. No matter how divergent the goals of trade and investment treaties may be, in relation to the entry of investments and investors, the interpretation of the wording of their provisions leads to particularly similar results. The concept of commercial presence in the GATS includes aspects equivalent to the so-called establishment of foreign direct investments. The interpretation of GATS rules as covering potential service suppliers bear a resemblance to concepts already present in BIT practice in relation to investors that seek to invest. Therefore, there are some signs of an increasing conceptual and substantive convergence of rules. The way the admission clauses evolved to establishment clauses in some treaties shows that the difference between them, while less radical and of limited practical relevance, may indicate a step towards a convergence with international trade law. There has also been a trend towards treaty language granting more entry rights and commitments. This was done by the progressive introduction of national treatment for entry rights, the expansion of services coverage in Mode 3 and the recognition and clarification of the rights to potential investors. The increasing number of ITs containing establishment rights is noted especially in light of the new mega-regionals. There has also been a disposition to include provisions related to the entry of investors coming from the international trade law world into the investment law arena. In sum, the substantive convergence of the rules related to entry of investments in treaty-making is becoming more evident.

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New Model of Investment Protection Under CETA

Víg

Hajdu

2020

World Trade and Local Public Interest

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Article: Converging Towards NAFTA: An Analysis of FTA Investment Chapters in the European Union and the United States

Cited by 8 publications

References 8 publications

The Negotiation, Diffusion, and Legacy of NAFTA Chapter 11: An Empirical Eulogy

The Negotiation, Diffusion, and Legacy of NAFTA Chapter 11: An Empirical Eulogy

How Does International Economic Law Regulate the Right of Entry of Investments in Services?

New Model of Investment Protection Under CETA

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