Punctuated Equilibrium: The Potential Role of FTA Trade Commissions in the Evolution of International Investment Law

摘要

This article considers whether commissions of the State parties created under free trade agreements (FTAs) may provide a framework for States to take more responsibility for decision-making within the international investment regime. One of the central features of the current regime, built primarily on the basis of bilateral investment treaties, is the lack of provision for institutionalized decision-making by States. Rather, most decision-making is carried out through ad hoc investor-State dispute settlement. This lack of involvement by States after treaties have been signed weakens the ability of the regime to respond to the many challenges it currently faces. At the same time, the promotion and use of trade commissions raises several questions, relating, inter alia, to their accountability, potential for conflict with judicial roles, and more widely, their place within an increasingly complex international legal system. Trade commissions have the potential to make a useful contribution to the governance of the investment regime but in assuming greater decision-making responsibility, States will also need to ensure that their trade commissions' act responsibly too.