With the recently released Trans-Pacific Partnership (TPP) trade agreement, financial stakeholders are focusing on how the agreement’s investor-state dispute settlement (ISDS) process might be used to challenge current financial regulations.
“Unless a U.S. financial law specifically treats a foreign institution in a way less favorable than it does a U.S. institution, that law would not be challengeable under ISDS,” said Eric Shimp, policy advisor in Alston & Bird’s International Trade & Regulatory Group. “The TPP investment chapter further protects the ability of the U.S. to regulate to preserve financial stability.”
Facial challenges to U.S. financial laws under TPP are unlikely, Shimp said.
“It’s important to understand that it is an action of a government, such as a court decision or an administrative decision by a regulator, that would provide the legal basis for an expropriation claim under ISDS,” he said. “Not generally a law itself, but its application.”