This project (funded for 2014-6) will evaluate the economic and legal risks associated with the Australian Government’s current policy on investor-state dispute settlement through multidisciplinary research, namely econometric modeling, empirical research through stakeholder surveys and interviews, as well as critical analysis of case law, treaties and regulatory approaches. The aim of this project is to identify optimal methods of investor-state dispute prevention, avoidance and resolution that efficiently cater to inbound and outbound investors as well as Australia as a whole. The goal is to promote a positive climate for investment inflows and outflows, while maintaining Australia's ability to take sovereign decisions on matters of public policy.
PROGRESS OF PROJECT
For the econometric study of the impact of ISDS on FDI inflows, CI Armstrong has completed the literature review, data assembly and coding, producing preliminary results. These have been incorporated into a paper jointly with CI Nottage on “Mixing Methodologies” for an Oslo University “Pluricourts” program book project. CI Nottage, plus CI Trakman, have completed numerous semi-structured and informal interviews on stakeholders involved or interested in international investment dispute resolution and given many public lectures individually and sometimes jointly, nationally and internationally. Drawing on interim project findings, Nottage has also provided evidence and submissions for several parliamentary inquiries since 2014 (including on 19 February 2016 for the JSCOT inquiry into ratifying the Trans-Pacific Partnership FTA, based on three recent postings on this Blog), as well as media commentary. CI Kurtz has also given many presentations drawing on his analysis of arbitral jurisprudence and commentary. All this has already generated many research publications, listed below (updating from April 2015 here).
PROJECT-RELATED PUBLICATIONS (published or forthcoming as of February 2016): many are freely available online (via URLs below or by Googling)
• Jürgen Kurtz and Luke Nottage, “Investment Treaty Arbitration ‘Down Under’: Policy and Politics in Australia”, 30 ICSID Review (2015), forthcoming, longer version at http://ssrn.com/abstract=2561147
• Shiro Armstrong, Jürgen Kurtz, Luke Nottage and Leon Trakman, “The Fundamental Importance of Foreign Direct Investment to Australia in the 21st Century: Reforming Treaty and Dispute Resolution Practice”
o ACICA News (December 2014): via http://acica.org.au/news
• “A Weathermap for International Arbitration: Mainly Sunny, Some Cloud, Possible Thunderstorms”, American Review of International Arbitration, forthcoming
o Sydney Law School Research Paper No. 15/62. Available at SSRN: http://ssrn.com/abstract=2630401
o with a version entitled “The Evolution of Arbitration Scholarship and Theory” in Stavros Brekoulakis, Julian Lew and Loukas Mistelis (eds.), The Evolution of International Arbitration (Alphen aan den Rijn: Kluwer), forthcoming
• “The Evolution of Foreign Investment Regulation, Treaties and Investor-State Arbitration in Australia” New Zealand Business Law Quarterly, forthcoming
• “Asian Investment and the Growth of Regional Investment Agreements” (with Vivienne Bath) in Christoph Antons (ed) Routledge Handbook of Asian Law (London: Routledge) forthcoming
• Luke Nottage and Chester Brown, “Australia”, in George Bermann (ed) Recognition and Enforcement of Foreign Arbitral Awards: The Application of the New York Convention by National Courts (Berlin: Springer) forthcoming
o Based on report for the 19th International Congress of Comparative Law, Vienna, 20-27 July 2014; Sydney Law School Research Paper No. 13/70, http://ssrn.com/abstract=2340806
• “Australia” (with James Morrison) in Simon Greenberg, Christopher Kee and Romesh Weeramantry, International Commercial Arbitration: An Asia-Pacific Perspective (Alphen aan den Rijn: Kluwer) forthcoming
o Longer version in Sydney Law School Research Paper No. 14/95 (2014), http://ssrn.com/abstract=2514124
• “The ASEAN Comprehensive Investment Agreement and ‘ASEAN Plus’ – The Australia-New Zealand Free Trade Area (AANZFTA) and the PRC–ASEAN Investment Agreement” (with Vivienne Bath) in Marc Bungenberg, Joern Griebel, Stephan Hobe & August Reinisch (eds) International Investment Law (Baden-Baden et al: Nomos / Beck / Hart) 283-303
o Also Sydney Law School Research Paper No. 13/69 (2013), http://ssrn.com/abstract=2331714
• Luke Nottage and Simon Butt, “Recent International Commercial Arbitration and Investor-State Arbitration Developments Impacting on Australia’s Investments in the Resources Sector” in Philip Evans and Gabriel Moens (eds) Arbitration and Dispute Resolution in the Resources Sector: An Australian Perspective (Berlin: Springer) 153-79
o Also Sydney Law School Research Paper No. 13/17 (2013), http://ssrn.com/author=488525
• “Do Many of Australia's Bilateral Treaties Really Not Provide Full Advance Consent to Investor-State Arbitration? Analysis and Regional Implications of Planet Mining v Indonesia” 1 (2015) Transnational Dispute Management www.transnational-dispute-management.com/article.asp?key=2177
o also Sydney Law School Research Paper No. 14/39, http://ssrn.com/abstract=2424987
• “The ‘Anti-ISDS Bill’ Before the Senate: What Future for Investor-State Arbitration in Australia?” XVIII International Trade and Business Law Review, 245-93
o Longer version as Sydney Law School Research Paper No. 14/76, http://ssrn.com/abstract=2483610
• “In/formalization and Glocalization of International Commercial Arbitration and Investment Treaty Arbitration in Asia” in Joachim Zekoll, Moritz Baelz and Iwo Amelung (eds) Formalisation and Flexibilisation in Dispute Resolution (Leiden: Martinus Nijhoff / Brill) 211-49
• “Asia-Pacific Regional Architecture and Consumer Product Safety Regulation for a Post-FTA Era” in Meredith Kolsky Lewis and Susy Frankel (eds) Trade Agreements at the Crossroads (London: Routledge) 114-38
o Longer version as Sydney Law School Research Paper No. 09/125 (updated 2011), http://ssrn.com/abstract=1509810
• “Investor-State Arbitration: Not in the Australia-Japan Free Trade Agreement, and Not Ever for Australia?” 38 Journal of Japanese Law, 37-52
• “Assessing Treaty-Based Investor-State Dispute Settlement: Abandon, Retain or Reform?” (with Christian Campbell and Sophie Nappert) Transnational Dispute Management 1 (2014) http://www.transnational-dispute-management.com/article.asp?key=2024
o Earlier version as Sydney Law School Research Paper No. 13/40 (2013), http://ssrn.com/abstract=2280182
• Leon Trakman and David Musaleyan,”The Repudiation of Investor-State Arbitration and Subsequent Treaty Practice: The Resurgence of Qualified Investor- State Arbitration” 31 ISCID Review (2016) http://icsidreview.oxfordjournals.org/reports/most-read.
• Investment Law, Arbitration and China, in Investment Law and Arbitration in the Asia-Pacific Region: Current Practice, Emerging Issues, Future Prospects, Julien Chaisse, Tomoko Ishikawa, and Sufian Jusoh (eds) (Cambridge, 2016, forthcoming).
• Leon E Trakman and David Musaleyan, Reconstituting Investor-State Arbitration, Essays in Honour of Muthucumaraswamy Sornarajah, Alternative Visions of the International Law on Foreign Investment, Chin Leng Lim (ed) (Cambridge, 2016) http://www.cambridge.org/au/academic/subjects/law/international-trade-law/alternative-visions-international-law-foreign-investment-essays-honour-muthucumaraswamy-sornarajah
• Leon E Trakman and Kunal Sharma, Jumping Back and Forth between Domestic Courts and ISDS: Mixed Signals from the Asia-Pacific Region in S.Hindelang and M Krajewski (Oxford, 2016), Chapter 13, https://global.oup.com/academic/product/shifting-paradigms-in-international- investment-law-9780198738428?cc=au&lang=en.
• China and Foreign Direct Investment: Looking Ahead, in Wehhua Shan and Qiao Liu, China and International Commercial Dispute Resolution (Brill, 2016), Chapter 6 http://www.brill.com/products/book/china-and- international-commercial-dispute-resolution.
• Leon Trakman and Kunal Sharma, “Locating Australia on the Pacific Rim: Trade, Investment and the Asian Century" (with Sharma, K) (2015) Transnational Dispute Management 1: http://www.transnational-dispute-management.com/article.asp?key=2178
• “Instituting Investment Claims under the Trans-Pacific Partnership Agreement” (Chapter 12) in China and International Investment Law (ed) Wenhua Shan, 2015 372-407:http://www.brill.com/products/book/china-and-international-investment-law. A soft copy of the penultimate chapter is available here.
• “Investment Disputes and Australia's National Interest: A Precarious Balance”, in John Farrar, Mary Hiscock and Vai Io Lo, Australia’s Trade, Investment and Security in the Asian Century (2015)
• “Geo-Politics and Investor-State Arbitration in China”, in China in the International Economic Order: New Directions and Changing Paradigms,Picker, Toohey and Greenacre, eds (Cambridge, 2015) http://www.cambridge.org/au/academic/subjects/law/international-trade-law/china- international-economic-order-new-directions-and-changing-paradigms?format=HB.
• “China and the Trans-Pacific Partnership Agreement, in Wehhau Shan”, The ICSID (Brill, 2015) http://www.brill.com/products/book/china-and- international-investment-law.
• "BITs and Pieces: Regional Developments in Investor-State Dispute Settlement" (with Kunal Sharma) APEC Currents (December 2014): http://bit.ly/1sVSYst
• "Indonesia’s Termination of the Netherlands–Indonesia BIT: Broader Implications in the Asia-Pacific?" (with Kunal Sharma): http://kluwerarbitrationblog.com/blog/2014/08/21/indonesias-termination-of-the-netherlands-indonesia-bit-broader-implications-in-the-asia-pacific/
• "The Status of Investor - State Arbitration: Resolving Investment Disputes under the Transpacific Partnership Agreement" 48 Journal of World Trade 1-29 (2014):
• “Resolving Investor-State Disputes: Australia’s Dilemma and Choices” (in Nye Perram, International Commercial Law and Arbitration: Perspectives (editor: Justice Nye Perram) Chapter 1 (Ross Parsons Centre of Commercial, Corporate and Taxation Law, 2014): available here
• “Deciding Investor States Disputes: Australia's Evolving Position”, 15 Journal of World Investment and Trade 152-192 (2014): here and at
• “China and Direct Foreign Investment: Does Distance Lend Enchantment to the View?” in 1(2) Chinese Journal of Comparative Law (2013): http://cjcl.oxfordjournals.org/content/early/2013/09/28/cjcl.cxt015
• “Investor-State Arbitration: Evaluating Australia’s Evolving Position”, Journal of World Investment & Trade 2014 15(1-2):152-192: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2401504
• “Investment Dispute Resolution under the Proposed Transpacific Partnership Agreement: Prelude to a Slippery Slope?” (2014) 48 Journal of World Trade 1-29
• "The WTO and International Investment Law: Converging Systems" (Cambridge University Press)
• “Balancing Investor Protection and Regulatory Freedom in International Investment Law: The Necessary, Complex and Vital Search for State Purpose” (2015) Yearbook of International Investment Law and Policy 251-303
• “On Inter-Disciplinary and Inter-Systemic Approaches to International Investment Law” (2015) 16 Journal of World Investment & Trade 547-562
• ‘The economic impact of the Australia-United States free trade agreement’, Australian Journal of International Affairs Volume 69, Issue 5, 2015.
• ‘Foreign economic policy strategies and economic performance’, in Funabashi, Y. and B. Kushner (eds) Examining Japan’s Lost Decades, Routledge, London and New York, 2015 (with Peter Drysdale). An earlier working paper version is: ‘Japan’s Foreign Economic Policy Strategies and Economic Performance’,
• ‘East and South Asia: Managing Difficult Bilateral Relations and Regional Integration Globally’, Asian Economic Journal, Volume 29, Issue 4, pages 303–324, December 2015
• ‘Are Free Trade Agreements Making Swiss Cheese of Australia’s Foreign Investment Regime?’, East Asia Bureau of Economic Research, Working Paper 92, November 2014
• Center on Japanese Economy and Business Working Papers, No. 340, 2014 (with Peter Drysdale)
• ‘Economic Cooperation in the Asia-Pacific and the Global Trading System’, Asia & the Pacific Policy Studies, 1(3), pp 513–521, September 2014