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6 - From Agriculture to Food Security

Embedded Liberalism and Stories of Regulatory Change

from Part II - The Dynamic of the Embedded Liberalism Compromise

Published online by Cambridge University Press:  21 September 2018

Gillian Moon
Affiliation:
University of New South Wales, Sydney
Lisa Toohey
Affiliation:
University of Newcastle, New South Wales
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Summary

The embedded liberalism of the law of the World Trade Organization (WTO) is often contrasted to a common laissez-faire liberalism of old-generation investment agreements (IIAs). While WTO law broadly attempts to reconcile trade liberalisation with regulatory flexibility, old-generation IIAs have been liberal instruments overly protective of investor interests at the expense of the state’s right to regulate. But the unharnessed liberalism of these IIAs progressively gives way to new more balanced instruments and a paradigm shift is witnessed towards a model that resembles WTO law’s embedded liberalism. The chapter explores this shift in international investment law towards models that radically change the landscape of the discipline, through the widespread use of public policy exceptions and other provisions aiming to safeguard the state’s regulatory flexibility. The focus is on very new investment agreements, including megaregionals, such as the Trans-Pacific Partnership (TPP) and the EU-Canada Comprehensive Economic and Trade Agreement (CETA), and recently adopted model bilateral investment treaties, such as the Brazilian model ‘cooperation and facilitation investment agreement’ (CFIA). In light of these instruments, it examines how embedded liberalism and the state’s right to regulate from ‘emergent’ concepts in international investment law are becoming the quintessence of new IIAs.
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Chapter
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The Future of International Economic Integration
The Embedded Liberalism Compromise Revisited
, pp. 81 - 102
Publisher: Cambridge University Press
Print publication year: 2018

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