TTIP

(A Report for the Irish Cancer Society)

Free trade agreements and investment treaties have the stated aims of promoting economic activity and growth through increased global trade and investment flows. The presumption that broader societal benefits—such as improved population health—will trickle down from such market liberalisation is called into question by deepening levels of social and economic inequality around the world. Against this backdrop, the proposed Transatlantic Trade and Investment Partnership (TTIP) between the United States and the European Union has generated concern as to its potential effects on public interest regulatory space and standards. The present study seeks to build on and deepen the existing research and analysis in this regard, with the specific purpose of clarifying and evaluating TTIP’s implications on health policy in Ireland. The clear conclusion drawn from the study is that the predicted economic benefits from TTIP are too small or speculative to justify the associated social risks.

Reducing cross-border dissonance of intellectual property laws has shifted decisively to international investment agreements (IIAs). Substantive provisions which mirror IP text found in multilateral trade agreements appear in the United States-Rwanda Bilateral Investment Treaty (BIT), and the Japan-China-Korea Trilateral Investment Treaty. These mark a paradigm shift away from provisions that simply define IP as a covered investment to be protected, in line with national law. Instead, these devices open host states to transplant-harmonization of international IP norms which go beyond the scope of national law. In September 2013 pharmaceutical company Eli Lilly filed a notice of arbitration under NAFTA chapter 11 against the government of Canada for the invalidation of previously issued patents for Strattera and Zyprexa. This followed earlier investment arbitration claims launched by cigarette manufacturer Philip Morris in 2010 and 2011, against Uruguay and Australia respectively, citing public health legislation which restricted the company’s use of its lawfully acquired trademarks.These investment claims are founded on intellectual property (IP) provisions in international investment agreements (IIAs), which include IP as a
covered investment. The Eli Lilly and Philip Morris claims have exposed pre-existing tensions arising from standard IIA clauses which protect IP as a covered investment; as well as newer provisions that incorporate
regulatory language from the agreement on trade related aspects of IP (TRIPS).IP has benefitted from international investment protection for as long as IIAs have existed, but enforcement and dispute settlement
have always taken place at the national level. The willingness to deploy investment treaty based provisions to enforce IPRs in arbitral proceedings is the result of a broader investment driven, bilateral shift in
the approach to IP regulation and dispute settlement. The addition of IIAs to the list of international regulatory tools available for IP protection and enforcement presents a new dilemma for the delicate IP policy bargain struck by the TRIPS agreement.

Various analysts consider BRICS (the association of Brazil, Russia, India, China and South Africa) as a manifestation of a changing world order, heralding the dawn of a 'Post-Western Age'. In the context of 21st-century regionalism—as presented in this paper—and global power shifts, the thesis of change would seem viable. Indeed, regional trade agreements and the diverse organisations in Asia, including the Shanghai Cooperation Organization, manifest an ongoing division of international cooperation into two centres of political, economic and military power: the transatlantic area, and Eurasia. This paper examines the two cases of BRICS, and the Transpacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP), and tests the hypothesis of a 'battle for globalisations', understood in two conflicting ways: as a) battle for global dominance, i.e., singular globalisation led by either the West or the 'Rest', and b) a battle for plural,'globalisations'. This paper endorses the idea of a more balanced and inclusive, and less 'western' governance, although within the global trade regime the thesis of singular globalisation can be maintained.

The EU and USA proposed Transatlantic Free Trade Area (TAFTA) or Transatlantic Trade and Investment Partnership (TTIP) is a free trade agreement (FTA) whose necessity is argued on the basis that it not only has the potential to cover over 50% of global trade in the near future, but also that it will: revitalize the transatlantic partnership, foster trade, create jobs, increase effciency due to intensifed bi-regional competition, besides start forming a counterweight to the Asian and Pacifc rise.

Accordingly, our paper aims to shed new light on the TAFTA | TTIP debate by addressing its critical aspects and, in particular, by analyzing the negative effects of its underlying spatial reconfigurations. The application of the Deleuzian concepts of deterritorialization and reterritorialization leads to a series of theoretical considerations that explain how TAFTA | TTIP: 1) creates space through the contractual integration of two regions and/or volitional balancing of others, 2) limits space through the exchange of surveillance data and heightened institutional control over the internet, and 3) expands space through legal homogenization and common regulatory standards.

International investment law is in transition. Whereas the prevailing mindset has always been the protection of the economic interests of individual investors, new developments in international investment law have brought about a paradigm shift. There is now more than ever before an interest in a more inclusive, transparent, and public regime.

Shifting Paradigms in International Investment Law, edited by Steffen Hindelang and Markus Krajewski, addresses these changes against the background of the UNCTAD framework to reform investment treaties. The book analyses how the investment treaty regime has changed and how it ought to be changing to reconcile private property interests and the state's duty to regulate in the public interest. In doing so, the volume tracks attempts in international investment law to recalibrate itself towards a more balanced, less isolated, and increasingly diversified regime.

By bringing together a geographically and ideologically diverse team of academics and practitioners to engage with the issues, the individual chapters of this edited volume address the contents of investment agreements, the system of dispute settlement, the interrelation of investment agreements with other areas of public international law, constitutional questions, and new regional perspectives from South Africa, Europe, Latin America, and the Pacific Rim Region. Together they provide an invaluable resource for scholars, practitioners, and policymakers.

Contents

Steffen Hindelang and Markus Krajewski: Introductory Observations
I: Giorgio Sacerdoti: Investment Protection and Sustainable Development: Key Issues
II: Peter Muchlinski: Negotiating New Generation International Investment Agreements: New Sustainable Development Oriented Initiatives
III: Roland Kläger: Revising Treatment Standards: Fair and Equitable Treatment in Light of Sustainable Development
IV: Lukas Stifter and August Reinisch: Expropriation in the Light of the UNCTAD Investment Policy Framework for Sustainable Development
V: Jonathan Ketcheson: Investor-State Dispute Settlement and Sustainable Development: Modest Reform
VI: Gus Van Harten: The EC and UNCTAD Reform Agendas: Do They Ensure Independence, Openness, and Fairness in Investor-State Arbitration
VII: J. Anthony VanDuzer: Sustainable Development Provisions in International Trade Treaties: What Lessons for International Investment Agreements?
VIII: Katharina Berner: Reconciling Investment Protection and Sustainable Development: A Plea for an Interpretative U-Turn
IX: Helmut Philipp Aust: Investment Protection and Sustainable Development: What Role for the Law of State Responsibility
X: Karsten Nowrot: Termination and Renegotiation of International Investment Agreements
XI: Sean Woolfrey: The Emergence of a New Approach to Investment Protection in South Africa
XII: Maria Luque: Reliance on Alternative Methods for Investment Protection through National Laws, Investment Contracts, and Regional Institutions in Latin America
XIII: Leon E. Trakman and Kunal Sharma: Jumping Back and Forth between Domestic Courts and ISDS: Mixed Signals from the Asia-Pacific Region
XIV: Peter-Tobias Stoll and Till Holterhus: The 'Generalization' of International Investment Law in Constitutional Perspective
XV: Frank Hoffmeister: The Contribution of EU Trade Agreements to the Development of International Investment Law
Steffen Hindelang and Markus Krajewski: Concluding Remarks