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Reforming International Investment Treaties and ISDS in the Asian Region

Dates:
  • Fri 27 Sep 2019 15.00 - 17.00
  Add to Calendar 2019-09-27 15:00 2019-09-27 17:00 Europe/Paris Reforming International Investment Treaties and ISDS in the Asian Region

Paper presentation by Professor Luke Nottage, Sydney Law School, Associate Director, Centre for Asia and Pacific Law at the University of Sydney.

Chair: Professor Jürgen Kurtz
Discussant: Dr Matteo Vaccaro Incisa

ABSTRACT:
Asian states have been mostly “rule takers” in international law, but are increasingly “rule makers” especially in international investment law. This presentation outlines that shift in investment treaty practice and ongoing UN deliberations focusing on reform of investor-state dispute settlement (ISDS), against the backdrop of evolving foreign investment flows and ISDS disputes involving Asian parties. Some states in the (wider) Asian region have recently eschewed ISDS in future treaties (NZ, perhaps Australia again). Others have agreed to substitute a permanent investment court (Vietnam, Singapore – but only in treaties with the EU which now insists on this alternative to ISDS). Others are significantly limiting access to ISDS (notably India, through its 2016 Model BIT). Most are sticking to contemporary US-style investment treaty drafting, which has long influenced especially Free Trade Agreements in the wider Asian region, as seen in the new Australia-Indonesia FTA (retaining the ISDS option) as well with Korea or Japan. But the ongoing UN and other reform discussions may lead to further innovations, such as the express prohibition of “double-hatting’’ by ISDS arbitrators in the regional CPTPP (in force from 2019). The future trajectories for ASEAN overall and China remain unclear too. This presentation explores these tensions and especially the potential for states in the Asian region to develop an EU-style investment court mechanism or variant, even outside treaties with the EU as counterparty.

Sala del Camino, Villa Salviati DD/MM/YYYY
  Sala del Camino, Villa Salviati

Paper presentation by Professor Luke Nottage, Sydney Law School, Associate Director, Centre for Asia and Pacific Law at the University of Sydney.

Chair: Professor Jürgen Kurtz
Discussant: Dr Matteo Vaccaro Incisa

ABSTRACT:
Asian states have been mostly “rule takers” in international law, but are increasingly “rule makers” especially in international investment law. This presentation outlines that shift in investment treaty practice and ongoing UN deliberations focusing on reform of investor-state dispute settlement (ISDS), against the backdrop of evolving foreign investment flows and ISDS disputes involving Asian parties. Some states in the (wider) Asian region have recently eschewed ISDS in future treaties (NZ, perhaps Australia again). Others have agreed to substitute a permanent investment court (Vietnam, Singapore – but only in treaties with the EU which now insists on this alternative to ISDS). Others are significantly limiting access to ISDS (notably India, through its 2016 Model BIT). Most are sticking to contemporary US-style investment treaty drafting, which has long influenced especially Free Trade Agreements in the wider Asian region, as seen in the new Australia-Indonesia FTA (retaining the ISDS option) as well with Korea or Japan. But the ongoing UN and other reform discussions may lead to further innovations, such as the express prohibition of “double-hatting’’ by ISDS arbitrators in the regional CPTPP (in force from 2019). The future trajectories for ASEAN overall and China remain unclear too. This presentation explores these tensions and especially the potential for states in the Asian region to develop an EU-style investment court mechanism or variant, even outside treaties with the EU as counterparty.


Location:
Sala del Camino, Villa Salviati

Affiliation:
Department of Law

Type:
Working group

Organiser:
International Law Working Group

Contact:
Valentina Spiga - Send a mail
 
 

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