Bringing trade and investment rules into conformity with the pursuit of often superior public policies is subject to intense debates in international economic law. While this topic has various facets and can be addressed from different angles, the present analysis demonstrates that specific tools to effectuate a better balance between trade and investment interests and non-economic policies have proliferated in trade and investment agreements that also give testimony of a considerable degree of convergence in the legal tools and their use. It could be shown that even though this on-going development is not straightforward but suffers from inconsistencies and contradictory movements, one can observe considerable parallel and far-spread, even globally simultaneous developments. They concern both the textual means used in international agreements such as general exceptions, policy-specific chapters or confessions to regulatory autonomy of the states, and the jurisprudential interpretive approaches and control standards, even though in particular in investment treaty arbitration, practice develops very slowly. One can assess this as a muster of progressing and progressive constitutionalism in trade and investment policy in view of other public policies.

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Towards a Common Constitutional Frame for Non-economic Values in Trade and Investment Agreements: Socio-Economic Constitutionalism in the Making

  • Wolfgang Weiß,
  • Cornelia Furculita

摘要

Bringing trade and investment rules into conformity with the pursuit of often superior public policies is subject to intense debates in international economic law. While this topic has various facets and can be addressed from different angles, the present analysis demonstrates that specific tools to effectuate a better balance between trade and investment interests and non-economic policies have proliferated in trade and investment agreements that also give testimony of a considerable degree of convergence in the legal tools and their use. It could be shown that even though this on-going development is not straightforward but suffers from inconsistencies and contradictory movements, one can observe considerable parallel and far-spread, even globally simultaneous developments. They concern both the textual means used in international agreements such as general exceptions, policy-specific chapters or confessions to regulatory autonomy of the states, and the jurisprudential interpretive approaches and control standards, even though in particular in investment treaty arbitration, practice develops very slowly. One can assess this as a muster of progressing and progressive constitutionalism in trade and investment policy in view of other public policies.