Trade Liberalisation and International Co-operation
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Trade Liberalisation and International Co-operation

A Legal Analysis of the Trans-Pacific Partnership Agreement

Edited by Tania Voon

This book provides a detailed analysis of major legal and public policy issues arising from the Trans-Pacific Partnership Agreement (TPP) – a treaty that will dramatically change the landscape of international trade, with effects that will be felt on a global scale.
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Chapter 8: State-state dispute settlement under the Trans-Pacific Partnership Agreement

Andrew Mitchell and James Munro


Most modern preferential trade agreements (PTAs) contain formal stateñ state dispute settlement mechanisms, and the Trans-Pacific Partnership Agreement (TPP) will be no exception. The addition of Mexico and Canada to the TPP negotiations brings the total number of TPP parties to 11, encompassing Australia, New Zealand, the United States, Peru, Chile, Brunei, Malaysia, Singapore, and Vietnam. This chapter discusses a number of special legal issues facing the TPP parties as they seek to design a well-functioning dispute settlement mechanism to resolve their disputes under the TPP. First, we discuss the implications of multiple overlapping trade treaties between various subsets of TPP parties, each containing their own dispute settlement systems, which raises questions in relation to conflicts of norms and conflicts of jurisdiction. Second, we consider the rules of interpretation that will be used by tribunals convened under the TPP to construe its terms and settle disputes, including a potential role for the jurisprudence of the World Trade Organization (WTO) dispute settlement system. Although the TPP parties have not released a draft text of their dispute settlement mechanism, we draw on their rich body of precedents under past PTAs and evaluate their effectiveness in addressing these special legal issues. We find a remarkable degree of diversity and inconsistency in TPP partiesí past practices, with some precedents substantially more effective than others in resolving particular legal problems. All of the TPP parties are WTO Members, and all have at least one existing PTA with another TPP party.

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