Treaty Structure and Public Interest Regulation in International Economic Law
Mexico - 24 April 2018
This article analyzes how treaty structure affects regulatory autonomy by shifting the point in a treaty in which tribunals address public interest regulation. The article also analyzes how trade and investment treaties use a variety of structures that influence their interpretation and the manner in which they address public interest regulation. WTO and investment tribunals have addressed public interest regulation in provisions regarding a treaty’s scope of application, obligations and public interest exceptions. The structure of treaties affects a tribunal’s degree of deference to regulatory choices. In treaties that do not contain general public interest exceptions, tribunals have excluded public interest regulation from the scope of application of the treaty as a whole or the scope of application of specific obligations. If treaty parties wish to preserve a greater degree of regulatory autonomy, they can limit the general scope of application of a treaty, or the scope of application of specific obligations, which places the burden of proof on the complainant. In cases where the complexity of the facts or the law make the burden of proof difficult to meet, this type of treaty structure makes it more difficult to prove treaty violations and thus preserves regulatory autonomy to a greater degree.