The Trans-Pacific Partnership (TPP) Agreement was signed in February 2016 by 12 Asia-Pacific economies that already account for 40% of world GDP, including the United States, Japan and Australia. If ratified, economists model significant economic growth prospects, especially for smaller and/or less developed member states, with a considerable impetus coming from greater cross-border investment. Further economic benefits are expected if others join the existing signatories, with expressions of interest already coming from leaders in several Asian states.
However, whether the treaty will be ratified and come into force remains unclear, partly because of some ongoing opposition to the TPP’s investment chapter provisions even within existing signatories, for example from some quarters within Australia (and, to a lesser extent, Japan). One focus of criticism is the extra option of investor-state dispute settlement (ISDS), aimed at more credibly enforcing the substantive protections and liberalisation commitments of host states. My paper for a conference on FTAs in Melbourne on 19 May 2016, (at http://ssrn.com/abstract=2767996 and outlined below) assesses such concerns.
A version will also be presented at the Institute for Southeast Asian Studies in Singapore on 5 August, for their interdisciplinary project on the impact of the TPP in the region. In addition, on 4 August I will present a broader paper on "Rebalancing Investment Treaties and Investor-State Arbitration in Asia and Australia" at the SMU workshop on "Regulation and Investment Disputes: Asian Perspectives".
The pros and cons of ISDS nowadays will be further addressed in another joint research conference and book project with Chulalongkorn University, funded by its ASEAN Studies Centre, at a conference in Bangkok on 18 July that compares the experiences and debates over treaty-based ISDS as well as contract-based investment arbitration across all ten ASEAN member states (including current TPP signatories, and potential additional ones like Thailand, Indonesia and the Philippines). The final program and speakers are listed below.
The first part of this paper assesses prospects for ratification in light of investment trends and treaty practices in Asia and Oceania, including current and possible future TPP states. It shows how many have now weathered occasional claims from foreign investors, without abandoning ISDS from subsequent treaties.
The second part introduces the ISDS-backed substantive provisions of the TPP investment chapter, particularly compared to other recent Australian free trade agreements (FTAs). These provisions continue a trend for over a decade, following the lead of the United States and evident in the FTA practice of many other Asia-Pacific states, of including provisions more favourable to host states compared to an earlier era of stand-alone bilateral investment treaties, which often followed a simpler European template. As such, the investment chapter seems less likely to prevent ratification of the TPP, although the broader politics in countries like Australia remain complex.
In addition, the paper concludes with a wider question as to whether and how investment treaties in the region may develop an even more pro-host-state stance. This is now being be promoted by the European Union in negotiations with the US, but also several Asia-Pacific states, both in terms of substantive provisions and an “investment court” in lieu of ad hoc ISDS arbitration panels.
Conference on “International Investment Arbitration and Dispute Resolution in Southeast Asia” (Bangkok, 18 July 2016) - Program and PDFs downloads of powerpoint slides:
9.10-10am Pan-ASEAN Context and Thailand Prof Luke Nottage, University of Sydney, and Prof Sakda Thanitcul, Chulalongkorn University [draft Thailand paper here: http://ssrn.com/abstract=2770889]
10-10.30 Vietnam Nguyen Manh Dzung, Dzungsrt & Associates, Ho Chi Minh City Download file
10.30-10.45 Coffee break
10.45-11.15 Philippines Prof Diane Desierto, University of Hawai’i Download file
11.15-45 Indonesia Antony Crockett, Hiswara Bunjamin Tandjung (HSF), Jakarta Download file
11.45-12.15 General Q&A
12.15-1.15 Lunch break
1.15-1.45 Singapore A/Prof Mahdev Mohan, Singapore Management University Download file
1.45-2.30 Brunei & Malaysia A/Prof Sufian Jusoh, National University of Malaysia, Kuala Lumpur [by videolink] Download file
2.30-3.00 General Q&A
3-3.15 Coffee break
3.15-4.15 Cambodia & Laos Dr Romesh Weeramantry, Clifford Chance, Hong Kong Download file
4.15-4,45 Myanmar Dr Jonathan Bonnitcha, UNSW, Sydney
4.45-5.15 General Q&A & closing Profs Nottage & Thanitcul
Speaker / Chair bios:
Assistant Professor Mahdev Mohan, Singapore Management University
Mahdev Mohan is an Assistant Professor at the Singapore Management University School of Law (SMU) where he teaches public international law, and directs the Asian Business & Rule of Law initiative within SMU’s Centre for Cross-border Commercial Law in Asia. Mahdev was the co-principal investigator for a project carried out by SMU and the University of Witswatersrand on National Action Plans for transnational business and human rights. He is currently the principal investigator for a project on regulation and investment arbitration in Asia. An editorial board member of the Journal of East Asia & International Law, and the China & WTO Review, he researches on international law, investment arbitration and human rights in Asia. Mahdev is also an Associate Tenant of Temple Garden Chambers in London, a Nominated Member of Parliament in Singapore and has represented civil parties before a United Nations-backed tribunal in Cambodia.
Nguyen Manh Dzung, Dzungsrt & Associates LLC
Mr Nguyen Manh Dzung is managing partner of Dzungsrt & Associates LLC, a boutique shipping and ADR law firm in Vietnam, and has represented clients in both domestic and international arbitrations in Vietnam ranging from shipping, international trade and investment disputes since 1994. Mr. Dzung has been active as an editorial member of Drafting Committees of all key legislations on ADR in Vietnam, including notably the Law on Commercial Arbitration in 2010 and the first Governmental Decree on Commercial Mediation. He was a founder and vice chairman of the Pacific International Arbitration Centre (PIAC) and now serves as a member of the Research Council of the Vietnam International Arbitration Centre (VIAC). He is a frequent speaker on arbitration and mediation for the Supreme People’s Court, the Ministry of Justice and Vietnam International Arbitration Centre. He is also a visiting lecturer on arbitrating and mediating skills for trainee lawyers in Vietnam.
Antony Crockett, Hiswara Bunjamin Tandjung (Herbert Smith Freehills)
Antony Crockett is an international law and dispute resolution specialist with expertise in international commercial arbitration, civil litigation, investment treaty arbitration and public international law. Antony has represented clients in arbitration proceedings conducted under GAFTA, HKIAC, ICC, ICSID, LCIA, PCA, SIAC, Swiss and UNCITRAL Rules, as well as mediation and expert determination proceedings. Antony is admitted as a solicitor in England & Wales and currently practices in Indonesia as a foreign legal consultant. He is also admitted as a barrister and solicitor of the Supreme Court of Victoria, Australia and as a Solicitor of the High Court of the Hong Kong Special Administrative Region.
Adjunct Professor Romesh Weeramantry, Clifford Chance
Dr Weeramantry is a Foreign Legal Consultant at Clifford Chance, specialising in complex arbitrations involving cross-border commercial disputes and investment treaty claims relating to Asia. He is also an Adjunct Professor at the University of Hong Kong. His prior professional experience includes work at the Iran-United States Claims Tribunal (The Hague) and the United Nations Compensation Commission (Geneva) on inter-government disputes arising from Iraq's invasion of Kuwait. He has advised major international organizations on dispute settlement and has trained government officials and judges in developing nations on arbitration and international law issues. His publications include Treaty Interpretation in Investment Arbitration (Oxford University Press 2012); and International Commercial Arbitration: An Asia-Pacific Perspective (Cambridge University Press 2011). He is an editor of the The Hong Kong Arbitration Ordinance: Commentary and Annotations (2nd edition, 2015); the Asian Dispute Review and the Hong Kong White Book Arbitration and ADR Volume. He is also a member of the Editorial Board of the ICSID Review.
Professor Sakda Thanitcul, Chulalongkorn University
Dr Sakda Thanitcul is Professor of Law and immediate past Dean at the Faculty of Law, Chulalongkorn University, in Bangkok. He earned his LLB from Chulalongkorn University, LLM and PhD (Law) from University of Washington School of Law and also LLM and LLD degrees from Kyoto University. He was a member of the advisory team to the chief negotiators of the US-Thailand FTA and the Japan-Thailand Economic Partnership Agreement. His recent publications include “Thailand" (with R. Ian McEwin) in Mark Williams (ed), The Political Economy of Competition Law in Asia (Hart Publishing, 2011), pp 279-291, “Thailand” (with R Ian McEwin) in Mark Williams (ed.), The Political Economy of Competition Law in Asia (Edward Elgar, 2013), pp 251-282, “Compulsory licensing of chronic disease pharmaceuticals in Thailand” (with Matthew L Braslow), (2014) 37(3) Thai Journal of Pharmaceutical Sciences 106-120, and ASEAN Product Liability and Consumer Product Safety Law (co-edited with Luke Nottage, Winyuchon, 2016).
Professor Luke Nottage, University of Sydney
Dr Luke Nottage specialises in international arbitration, contract law, consumer product safety law and corporate governance, with a particular interest in the Asia-Pacific region. He is Professor of Comparative and Transnational Business Law at Sydney Law School, founding Co-Director of the Australian Network for Japanese Law (sydney.edu.au/law/anjel), and Associate Director of the Centre for Asian and Pacific Law at the University of Sydney. Luke’s 12 books include International Arbitration in Australia (co-edited with Richard Garnett, Federation Press, 2010), Foreign Investment and Dispute Resolution Law and Practice in Asia (co-edited with Vivienne Bath, Routledge, 2011) and ASEAN Product Liability and Consumer Product Safety Law (co-edited with Sakda Thanitcul, Winyuchon, 2016). Luke is an ACICA Special Associate and founding member of the Rules drafting committee, the Australasian Forum for International Arbitration council’s Japan Representative, and on the panel of arbitrators for the BAC, JCAA, KCAB, KLRCA, SCIA and TAI. Luke has also consulted for law firms world-wide, ASEAN, the EC, OECD, UNCTAD, UNDP and the Japanese government, and is Managing Director of Japanese Law Links Pty Ltd (www.japaneselawlinks.com).
Dr Jonathan Bonnitcha, University of New South Wales
From July 2016, Jonathan Bonnitcha will be a Lecturer in Law at the University of New South Wales. He holds the degrees of DPhil, MPhil and BCL from the University of Oxford, where he studied as a Rhodes scholar, and the degrees BEc and LLB from the University Sydney. His academic publications include Substantive Protection under Investment Treaties: a Legal and Economic Analysis (CUP 2014) and, with Lauge Poulsen and Michael Waibel, The Political Economy of the Investment Treaty Regime (OUP, forthcoming 2016). Jonathan has worked on investment treaty arbitrations as a lawyer in private practice and as government lawyer in the Australian Attorney General’s Department. He has advised the governments of several other developed and developing countries on legal and policy issues relating to investment treaties, including the Government of Myanmar. He lived in Myanmar from 2013 to 2016.
Associate Professor Sufian Jusoh, National University of Malaysia, Kuala Lumpur
Dr Sufian Jusoh is the Deputy Director and a Senior Fellow at the Institute of Malaysian and International Studies, National University of Malaysia and Consultant of the World Trade Institute, University of Bern, Switzerland. Sufian Jusoh is also a Distinguished Fellow at the Institute of Diplomacy and Foreign Relations, Ministry of Foreign Affairs, Malaysia. Sufian is a Barrister-at-Law (England and Wales) of Lincoln’s Inn, London. Sufian holds an LL.B from Cardiff Law School, an LL.M (Merit), University College London and a Doctor in Law (summa Cum Laude) from University of Bern, Switzerland. Sufian is an Investment Law Expert at the World Bank Group’s Trade and Competitiveness team. Sufian is also a consultant in investment policy and liberalisation of services for ASEAN. Sufian has advised some members of the TPPA on certain negotiation issues. Sufian coordinates the World Trade Institute’s consultancy and training programmes in the field of international trade, investment and IP in Southeast Asia.
Professor Diane Desierto, University of Hawai’i
Prof. Dr. Diane Desierto (JSD, Yale Law School) is the tenured Michael J. Marks Distinguished Professor and Co-Director of the ASEAN Law & Integration Center (ALIC) at the University of Hawaii William S. Richardson School of Law, 2016 Visiting Scholar and Research Fellow at Stanford Global Studies Division and the 2016-2017 Fellow of the Center for Advanced Study in Behavioral Sciences at Stanford University, 2016 Visiting Scientist at UNICA (Italy), where she specializes in public international law, international arbitration and dispute settlement, international human rights and humanitarian law, international economic law, and ASEAN law. She is a Member of the Scientific Advisory Board of the European Journal of International Law and permanent Editor of EJIL:Talk!, Member of the Academic Council of the Institute of Transnational Arbitration, Editor of the Asia Yearbook of International Law, Legal Expert for the ASEAN Secretariat, Research Committee Member of the Asian Society of International Law, and 2017 Director of Studies for Public International Law at the Hague Academy of International Law.
Prof. Desierto has clerked for Judges Simma and Sepulveda-Amor at the International Court of Justice, served as lead arbitration counsel in sovereign arbitration, and served as legal adviser to various government agencies and tribunals in Southeast Asia on various issues and questions of international law. Among her various books and articles in the United States, Europe, and Asia, Prof. Desierto authored Necessity and National Emergency Clauses: Sovereignty in Modern Treaty Interpretation (Martinus Nijhoff, 2012) and Public Policy in International Economic Law: The ICESCR in Trade, Finance, and Investment (OUP, 2015).
Judge Sorawit Limparangsri, Thai Arbitration Institute
Judge Sorawit graduated LL.B with honours from Thammasat University, and was admitted to the Thai Bar. He obtained master degrees in law from Columbia University and the University of Michigan at Ann Arbor. Judge Sorawit has been involved in arbitration practice in Thailand for many years in various capacities. He currently holds the position of Judge of Office of the President of the Supreme Court, and has been an executive of the Thai Arbitration Institute (TAI) for several years to date. He has also represented Thailand in the Working Group II (Arbitration and Conciliation) of the United Nations Commission on International Trade Law (UNCITRAL) in various sessions since 2005. Judge Sorawit wrote the first treatise on the current Thai arbitration law, and has published numerous articles on arbitration, mediation and conflict resolution.
Dr Vilawan Mangklatanakul, Ministry of Foreign Affairs, Thailand
Mrs. Vilawan Mangklatanakul, Deputy Director-General of the Department of Treaties and Legal Affairs, is a career diplomat who has been with the Ministry of Foreign Affairs of the Kingdom of Thailand since 1995. Mrs. Mangklatanakul has represented the Government of Thailand on many occasions as the lead legal negotiator and legal adviser in connection with the negotiations of free trade agreements and international investment agreements. Previously, she has held such titles as Director of the Office of Policy and Planning, the Office of the Permanent Secretary; Director of the International Law Development Division, the Department of Treaties and Legal Affairs; and Director of the Legal Affairs Division of the Department of Treaties and Legal Affairs.
Mrs. Mangklatanakul has experience acting as an associate judge at the Central Intellectual Property and International Trade Court for five years, and lectures extensively on international law, international trade, investment treaties, dispute settlement mechanisms, and arbitration at various legal education institutes across Thailand. Mrs. Mangklatanakul received the degrees of Bachelor of Laws from Thammasat University; Master of Laws (International Business Law) from the Queen Mary College, University of London; and Doctor of Philosophy in Law from the Institute of Advanced Legal
Studies, University of London.
Ms Athita Komindr, THAC Thailand Arbitration Center
Athita is the Executive Manager of Arbitration and Legal Affairs at THAC (Thailand Arbitration Center) in Bangkok. Her position entails administering THAC arbitration cases, spearheading arbitration training programs and research projects, promoting public awareness of all forms of alternative dispute resolution, and fostering cooperation with neighboring and global ADR institutions and learning centers. In addition, to advance THAC's mission of fostering a vibrant ADR culture in Thailand, Athita frequently travels to speak with the next generation of legal minds and ADR users at Thai universities and law faculties.
A dispute settlement specialist with a strong interest in the resolution of public and private international trade and commercial conflicts, Athita has extensive professional and academic expertise in cross-border negotiations, bilateral and multilateral dispute resolution, and international law and development. Admitted to the New York Bar since 2002, she is experienced in both common and civil law traditions, and is bilingual in Thai and English with a working knowledge of French. Athita was educated at Harvard (AB, LLM) and Georgetown University (JD), and formerly served in Thailand’s Ministry of Commerce (Department of Trade Negotiations) and as First Secretary at the Permanent Mission of Thailand to the WTO.
Vanina Sucharitkul, Herbert Smith Freehills, Bangkok
Vanina specializes in international commercial arbitration and has experience advising local and international clients on a diverse range of litigation and cross-border disputes involving commercial contracts, investigations and anti-corruption, joint ventures, and construction and infrastructure projects Paris, Bangkok and Hong Kong. Vanina has experience acting as counsel and advocate in arbitrations across multiple jurisdictions under the auspices of institutions including, amongst others, HKIAC, ICC, SIAC, AAA, and TAI. Vanina is Thailand's Court Member to the International Court of Arbitration of the International Chamber of Commerce. Prior to joining Herbert Smith Freehills Bangkok, Vanina developed her career as a litigation associate at Morrison & Foerster in San Francisco, practicing a range of US commercial litigation matters including securities, antitrust, trademark, and class action. She also has experience in international arbitration on issues of expropriation and public international law.
Vanina completed her undergraduate studies at University of California at Berkeley and her Juris Doctor at University of California, Hastings College of the Law. She is currently preparing a doctoral dissertation on enforcement of arbitration awards against state entities at the Université Panthéon-Assas (Paris 2). A holder of three nationalities, Vanina speaks Thai, French, and English.