The chapter analyses how trade agreements balance liberalisation of digital trade with cybersecurity concerns. The chapter identifies the strengths, weaknesses, and ambiguities facing digital trade regulation in these agreements. As a way to address the tension between international trade law and cybersecurity, it examines security exception clauses in different trade agreements. It also analyses the efforts found in recent regional trade agreements to direct state parties to have regard to international standards concerning cybersecurity issues. It concludes that harmonisation of such standards would suggest the possibility of a greater coherence in cybersecurity governance.

With the foreign investment competence in the Lisbon Treaty, the EU has set an objective to develop a coherent international investment policy. This policy is now being implemented through EU (mixed) international investment agreements and the Member States’ extra-EU BITs concluded with third countries in the post-Lisbon period. Both set of agreements serve to replace or supplement the existing extensive network of pre-Lisbon extra-EU BITs of Member States. As a matter of principle, a coherent EU policy could ensure the same level of protection for all EU economic operators investing abroad, contributing to the uniformity of the Common Commercial Policy. Further, it supports the EU in the global reform of international investment governance. Ultimately, a coherent external approach of the EU and its Member States could improve consistency between the regulation of investment internally and externally, thus endorsing the EU vision of constitutionalism in international law. In this chapter we examine the extent to which the EU has achieved coherence between EU’s and Member States’ investment agreements. We analyse substantive and procedural provisions of pre- and post-Lisbon Member States’ extra-EU BITs and EU international investment agreements in light of primary EU law, the existing transitional arrangements in EU secondary law and the CJEU case-law.

The influence of the EU and EU law on investment arbitration is one of the hotly debated topics in today’s arbitration world. Since the EU obtained the competence for the regulation of foreign (direct) investment on behalf of its Member States through the 2009 Lisbon Treaty, the European Commission’s efforts have brought about much change for both the EU’s internal and the EU’s external investment law relations. On the EU-internal level, the Commission – since 2018 backed by the European Court of Justice’s Achmea judgment and since early 2019 also by the EU Member States – has worked towards the elimination of investment arbitration. It seeks to have these disputes litigated before EU Member State courts instead. On the EU-external level, the Commission has successfully negotiated a new dispute settlement model in the EU’s free trade and investment agreements: an investment court system, the compatibility of which with EU law the Luxembourg court confirmed in 2019. This chapter seeks to set out these developments in a structured manner. It is necessarily incomplete, since the interaction between the Commission, investment tribunals, courts and other actors continues to develop – despite the fact that this interaction to a considerable degree remains determined by mutual ignorance.

The keystone of the European Union (EU) judicial order is Article 267 of the Treaty of the Functioning of the European Union (TFEU) whereby a court or tribunal of a Member State can, and in certain circumstances must, refer to the Court of Justice of the EU (CJEU) for a preliminary ruling a question of EU law that is necessary in order to enable the national court to give judgment in the case before it. This chapter explains what bodies, including an arbitral tribunal, constitute a court or tribunal for the purposes of that Article. It then examines the relationship between investor-state dispute resolution mechanisms, contained in the EU trade and investment agreements, and the EU judicial system. Finally, the chapter considers how the new national commercial courts that have been established in some Member States of the EU are likely to operate within the EU judicial system.

Chapter 9 attempts to apply the normative findings of this book to new-generation FTAs concluded by the EU, primarily to CETA. The analysis is based on the data gathered during the discussions with officials involved in the negotiation of these agreements. The study explains how the new FTAs establish primacy of procedural rules which place the EU at the forefront of dispute resolution. Finally, this study proposes some critical questions with the aim of opening further debate on the policy implications of functional international responsibility.

Chapter 6 defines the concept of the autonomy of the EU legal order and examines its implications for the choice of the most effective institutional framework for achieving and maintaining homogeneity in the expanded internal market. The Chapter scrutinises the concept of autonomy from the perspectives of domestic law and public international law, analyses its content and application by the Court of Justice and ramifications for the acquis-exporting agreements concluded by the Union.

This chapter deals with the enforcement of the international rules applying to the initial process of entry by analysing the possibilities and strategies of adjudication under the GATS and the dispute resolution systems of International Investment Agreements. The chapter initially evaluates whether investor-state arbitration (ISA) can be strategically used to enforce disputes when there is no investment yet. Then, it assesses the potential of state-state dispute settlement mechanisms for investment disputes. This is followed by an evaluation of the jurisdiction of the WTO DSB, especially when it comes to the enforcement of GATS provisions in mode 3. This panorama will set the ground to explain the recent innovative approaches taken by the current treaties and negotiations on the subject, illustrated by the services and establishment chapters of the EU-Canada FTA (CETA). Finally, the chapter tests to what extent the interaction in this area provides evidence of a gradual move towards a specific type of enforcement. The chapter concludes that state actors are progressively adopting convergent approaches in adjudication, at least with respect to the entry of investors in services.

In Chapter 10, Risa Schwartz discusses the development of a trade and Indigenous peoples chapter, looking at the development of provisions that provide for set-asides and carve-outs in earlier FTAs to more modern provisions that recognize Indigenous rights. The chapter traces how advocacy of Indigenous peoples in international trade and investment laid the groundwork for both Canada and New Zealand to substantively address Indigenous rights. Although we have yet to see the establishment of a new chapter specifically for trade and Indigenous peoples, the USMCA, which is undergoing ratification, is the first agreement to include a General Exception that protects the rights of Indigenous peoples for all signatories. These new preferences and protections for Indigenous peoples in Canada, Mexico and the United States signal a new relationship between Indigenous peoples and international trade.

In Chapter 6, William David looks at the inter-linkages between trade and environment in various FTAs and provides a thorough examination of new provisions in the environment chapters of regional trade agreements and how they may impact Indigenous peoples. Particular emphasis is placed on an exploration of the North American Agreement on Environmental Cooperation (NAAEC), a side agreement of the NAFTA, as well as the CPTPP and the intersection between Indigenous rights, environmental law and ISDS under the NAFTA.

The chapter puts forward a theory on how to apply Art. V GATS to federal states. It advances the understanding that in federal states services trade should be liberalized on all levels of government.

The chapter analyzes the services commitments of three federal entities - the EU, United States and Canada through their trade agreements with Korea. Also NAFTA and CETA agreements are analyzed.

The chapter opens Part II of the book, which focuses on services trade liberalization in federal states. It explains some of the central issues and problems that relate to services liberalization by federal states. Special attention is paid to the EU, Canada and the United States.