Finding a Workable Balance between Investor Protection and the Public Interest in the Trans-Pacific Partnership

This chapter discusses the apparent isolation of investment rules from mid-20th Century efforts to embed international economic rules within the overall social context of the New Deal in the United States and the British Welfare State. While embedded liberalism may have found its way subsequently into modern Bilateral Investment Treaties (BITs) through the United States' Friendship, Commerce and Navigation (FCN) treaties forged during the New Deal Era, this did not halt the growth of more pro-investor treaties. An eventual global backlash against investment treaties and investment arbitration formed the background against which TPP emerged. TPP's framers delegated significant aspects of the task of striking an appropriate balance between host State rights and investor rights to investment tribunals. This chapter explains how such delegation works in the application of TPP's contingent standards of protection, fair and equitable treatment standard and rule against expropriation. It explains TPP's legal-philosophical contribution to future treaty design, and its relevance to global reform of investment arbitration