Treaty-based investor-state arbitration (or ISDS more generally) is an increasingly topical issue, as FDI flows continue to grow, especially across Southeast Asia and the rest of the Asian region, and host states have begun to experience some claims brought by disgruntled foreign investors.
This conference organised for Thursday 16 February 2017 by the Centre for Asian and Pacific Law at the University of Sydney (CAPLUS) and the Sydney Centre for International Law (SCIL), with sponsorship from Herbert Smith Freehills, builds on the lively and timely conference funded by Chulalongkorn University's ASEAN Studies Centre in Bangkok on 18 July 2016, which compared the experiences and policy debates in each of the ten ASEAN member states. Those country reports are now being revised for review and eventual publication in a leading journal, with versions then being combined with papers on pan-Asian investment treaties and arbitration to be presented on 16 February 2017, for a co-edited book published by the same legal publisher.
This upcoming conference will bring together leading experts from Southeast Asia, North Asia, India and Oceania, including several from institutional partners of USydney. It will help round off a major cross-institutional and interdisciplinary research project into international investment dispute management more generally, funded by the Australian Research Council since 2014. The annual SCIL "International Law - Year in Review" symposium will also take place the next day, on Friday 17 February 2017.
Background and themes:
Asian states were initially cautious about the ISDS mechanism as a means for foreign investors to directly claim relief, rather than indirectly via inter-state arbitration, if host states violated their commitments to liberalise market access and/or protect foreign investments once made. But as Asian states began encouraging inbound FDI (eg Thailand from the 1980s), they also began committing to ISDS-backed protections (especially from the 1990s). Some initial claims generated concerns (eg in the Philippines and more recently Vietnam). Yet most ASEAN member states have now weathered claims without going cold on ISDS itself (except perhaps for Indonesia, which is terminating old treaties with a view to negotiating new ones that are less pro-investor, although a new draft Regulation indicates that the government still envisages treaties providing for consent to ISDS). ASEAN as a whole has included ISDS in its 2009 Comprehensive Investment Agreement for intra-regional investors, as well as its ASEAN+ Free Trade Agreements containing investment chapters (including that with Australia and NZ signed in 2009).
The 16 February 2017 conference aims first to explore this historical trajectory, assessing eg Lauge Poulsen’s thesis that developing countries negotiated such treaties and reacted to initial claims with ‘bounded rationality’. The focus will be on the ASEAN treaties, including the ‘ASEAN+6’ or Regional Comprehensive Economic Partnership (RCEP, now under negotiation) and broader ‘mega-regional’ agreements such as the recently-signed Trans-Pacific Partnership (already involving 4 ASEAN states, as well as eg Australia, the US and Japan).
The conference also aims to predict and contribute to the future trajectory for investment treaties in the Asian region. One possibility is a shift from US-style to contemporary EU-style treaties, including a bilateral or regional permanent investment court rather than ISDS arbitrators appointed ad hoc for each dispute. But another possibility is a reversion to excluding investor-state claims in future treaties, as possibly envisaged by Indonesia and India, but fully by Australia under the Gillard Government Trade Policy Statement (2011-13) and in accordance with the current policy position of the Labor Opposition.
Speakers [provisional acceptance, subject to funding]:
Title / Name (# indicates ARC project co-researchers) / Institution (* USydney institutional partners)
1 Prof Luke Nottage # Sydney Law School
2 Prof Sakda Thanitcul Chulalongkorn University, Bangkok*
3 A/Prof Julien Chaisse Chinese University of Hong Kong*
4 Prof Shiro Armstrong # Australian National University
5 Prof Jurgen Kurtz # University of Melbourne
6 Prof Leon Trakman # UNSW
7 A/Prof Jason Yackee University of Wisconsin-Madison (Fulbright Scholar, Thammasat University, Bangkok*)
8 Prof Diane Desierto University of Hawai’i (Co-director, ASEAN Law & Integration Centre)*
9 A/Prof Prabhash Ranjan South Asian University, Delhi
10 Prof (& Vice-President, Int’l) Joongi Kim Yonsei University*
11 Prof Tomoko Ishikawa Tsukuba University
12 A/Prof Amokura Kawharu University of Auckland*
13 Prof Vivienne Bath Sydney Law School
14 Prof Chester Brown Sydney Law School
15 Adj Prof Donald Robertson Herbert Smith Freehills & USydney
16 Prof August Reinisch University of Vienna*
17 Prof Gail Pearson Sydney Business School
18 A/Prof David Kim USydney - Economics
19 Christopher Thomas QC National University of Singapore*
20 [tbc] Prof Michelle Ratton FGV Sao Paulo, Brasil*
21 Brenda Horrigan Herbert Smith Freehills (Shanghai and Sydney)