The TPP Investment Chapter and Investor-State Arbitration in Asia and Oceania: Assessing Prospects for Ratification

By Nottage, Luke | Melbourne Journal of International Law, December 2016 | Go to article overview

The TPP Investment Chapter and Investor-State Arbitration in Asia and Oceania: Assessing Prospects for Ratification


Nottage, Luke, Melbourne Journal of International Law


The Trans-Pacific Partnership ('TPP') was signed in February 2016 by 12 Asia-Pacific economies that already account for 37 per cent 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 among existing signatories, for example from some quarters within Australia. One focus of criticism is the extra option of investor-state dispute settlement (TSDS), aimed at more credibly enforcing the substantive protections and liberalisation commitments of host states. The first part of this article therefore 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 standalone 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 article 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 promoted by the European Union in negotiations with the US, but also by several Asia-Pacific states, both in terms of substantive provisions and an 'investment court' in lieu of ad hoc ISDS arbitration panels.

Contents

I   Introduction
II  Asia-Pacific Investment Trends, Treaties and ISDS Claims
      A Investment and Treaty Arbitration Trends
      B ISDS Policy Developments in East Asia and the Pacific
III Highlights from the TPP Investment Chapter
      A Substantive Provisions
      B ISDS Provisions
IV  Conclusions
V   Postscript

I Introduction

On 5 October 2015, the Trans-Pacific Partnership ('TPP') (1) free trade agreement ('FTA') was substantially agreed among 12 Asia-Pacific countries (including Japan, the US and Australia). The lengthy text was released publicly on 5 November 2015 and signed on 4 February 2016. (2) Commentators soon began speculating on its prospects for ratification, (3) as well as pressure already for countries such as Indonesia, the Philippines, Thailand, Korea and even China to join the TPP, and/or accelerate negotiations for their Regional Comprehensive Economic Partnership ('RCEP' or 'ASEAN+6') FTA. (4) There was also considerable (and typically quite polarised) media commentary in Australia on the TPP's investment chapter, especially the investor-state dispute settlement ('ISDS') provisions. The Sydney Morning Herald, for example, highlighted a remark by an intellectual property ('IP') rights expert that Australia 'could get sued for billions for some change to mining law or fracking law or God knows what else'. (5) Other preliminary responses have been more measured. (6)

To assess such concerns about the TPP investment chapter, Part II of this article first outlines the development of investment treaties and investor-state arbitration in the wider Asia-Pacific region, especially East Asia. …

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