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Consolidating International Investment Law: The Mega-Regionals as a Pathway towards Multilateral Rules

  • TANIA VOON (a1)
Abstract
Abstract

Pessimism abounds in international economic law. The World Trade Organization (WTO) faces an uncertain future following its Ministerial Conference in Nairobi in 2015. International investment law is under attack in countries around the world, while mega-regional agreements such as the Trans-Pacific Partnership and the Trans-Atlantic Trade and Investment Partnership are beset by world events, from the United States’ federal election to the unexpected Brexit outcome. Yet the appetite of numerous States to continue forging plurilateral trade and investment deals provides some cause for hope. Viewed alongside other institutional developments including consensus-building work at the United Nations Conference on Trade and Development and the United Nations Commission on International Trade Law, the potential arguably now exists for credible movement towards multilateral rules in investment law. While the WTO's current negotiating stalemate highlights the difficulties in reaching agreement among 164 Members, international trade law offers lessons for working towards multilateralism in the international investment law field. Alongside informal discussions about a world investment court, mega-regionals provide a vehicle for future multilateral investment rules, particularly through the Comprehensive Economic and Trade Agreement between Canada and the European Union, and the Regional Comprehensive Economic Partnership currently under negotiation in Asia.

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* Email tania.voon@unimelb.edu.au.
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The first draft of this article was written during my period as Scholar in Residence with the Arbitration Group of Wilmer Cutler Pickering Hale and Dorr LLP in London (August 2016). I am grateful for the firm's support. This article forms part of independent research funded by the Australian Research Council pursuant to the Discovery Project scheme (project ID DP130100838) and by Melbourne Law School pursuant to the Melbourne Collaborative Project Fund. For helpful comments I thank the anonymous referees, L Alan Winters, Andrew D Mitchell, and the participants at the conference of the PluriCourts Centre of Excellence on Adjudicating International Trade and Investment Disputes: Between Interaction and Isolation (University of Oslo, 25 August 2016) and at the Biennial Conference of the International Economic Law Interest Group of the American Society of International Law (Georgetown University Law Center, 30 September 2016). This article expresses my personal opinions as an academic. Any errors or omissions are mine.

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1 Trans-Pacific Partnership Agreement (English language version of legally verified text released to the public 26 January 2016, signed 4 February 2016) (TPP).

2 The 12 TPP countries are Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, United States, and Viet Nam.

3 See, e.g., Bengt Ljung, ‘Trump Win Put EU–US Talks in Freezer, Ministers Say’ (15 November 2016) International Trade Daily.

4 See, e.g., Fortnam Brett, ‘TiSA Deal Halted by Trump's Win: Chief Negotiators to Meet Next Month’ (25 November 2016) 34(46) Inside US Trade Online.

5 On the extent to which international investment law is already multilateralized, see Schill Stephan W., The Multilateralization of International Investment Law (Cambridge University Press, 2009); Amarasinha Stefan and Kokott Juliane, ‘Multilateral Investment Rules Revisited’, in Muchlinski Peter, Ortino Federico, and Schreuer Christoph (eds.), The Oxford Handbook of International Investment Law (Oxford University Press, 2008) 120, 124.

6 UNCTAD, Recent Trends in IIAs and ISDS (IIA Issues Note No. 1, February 2015) figure 1.

7 Ibid.

8 UNCTAD, Investor–State Dispute Settlement: Review of Developments in 2015 (IIA Issues Note No. 2, June 2016) 2.

9 Ibid. 3.

10 Ibid. 1. An additional 10% of cases were discontinued, while in the remaining 2% a breach was established but no damages awarded.

11 Ibid. 7.

12 See, e.g., UNCTAD, Investor–State Dispute Settlement: Review of Developments in 2014 (IIA Issues Note No. 2, May 2015) 5.

13 North American Free Trade Agreement, signed 17 December 1992 [1994] CTS 2 (entered into force 1 January 1994) (NAFTA).

14 William Ralph Clayton, William Richard Clayton, Douglas Clayton, Daniel Clayton and Bilcon of Delaware Inc v. Canada, PCA Case No. 2009–04, UNCITRAL, Award on Jurisdiction and Liability (17 March 2015).

15 Ibid., Dissenting Opinion [49].

16 Windstream Energy LLC v. Canada, PCA, UNCITRAL, Award (27 September 2016) [515(b)].

17 Ibid. [7].

18 See, e.g., Paparinskis Martins, ‘MFN Clauses and International Dispute Settlement: Moving beyond Maffezini and Plama?’ (2011) 26(2) ICSID Review 14.

19 See Voon Tania, Mitchell Andrew D., and Munro James, ‘Legal Responses to Corporate Manoeuvring in International Investment Arbitration’ (2014) 5(1) Journal of International Dispute Settlement 41.

20 See, e.g., Public Statement on the International Investment Regime (Osgoode Hall Law School, York University, 31 August 2010), http://www.osgoode.yorku.ca/public-statement-international-investment-regime-31-august-2010/.

21 Convention on the Settlement of Investment Disputes between States and Nationals of Other States, opened for signature 18 March 1965 (entered into force 14 October 1966) (ICSID Convention).

22 Energy Charter Treaty (Annex 1 to the Final Act of the European Energy Charter Conference), opened for signature 17 December 1994, 2080 UNTS 100 (entered into force 16 April 1998) (Energy Charter Treaty).

23 See Tania Voon and Andrew D. Mitchell, ‘Denunciation, Termination and Survival: The Interplay of Treaty Law and International Investment Law’ (2016) 31(2) ICSID Review 413.

24 UNCTAD, Recent Trends in IIAs and ISDS (IIA Issues Note 1, February 2015) 2. See also UNCTAD (2016), above n. 8, 38, regarding the Brazil Model BIT.

25 Brown Chester (ed.), Commentaries on Selected Model Investment Treaties (Oxford University Press, 2013) 2.

26 Ibid. 6–8.

27 See, e.g., Baldwin Richard, Evenett Simon, and Low Patrick, ‘Beyond Tariffs: Multilateralizing Non-Tariff RTA commitments’, in Baldwin Richard and Low Patrick (eds.), Multilateralizing Regionalism (Cambridge University Press, 2009) 79, 106, n. 28. See also Sornarajah M., The International Law on Foreign Investment (3rd edn, Cambridge University Press, 2010) 262; Toye Richard, ‘The International Trade Organization’, in Narlikar Amrita, Daunton Martin, and Stern Robert M. (eds.), The Oxford Handbook on the World Trade Organization (Oxford University Press, 2012) ch. 4.

28 See WTO, Doha Work Programme: Decision Adopted by the General Council on 1 August 2004, WTO Doc. WT/L/579 (2 August 2004) [1(g)].

29 Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) (Marrakesh Agreement) annex 1A (Agreement on Trade-Related Investment Measures) (TRIMS Agreement).

30 See, e.g., OECD, Negotiating Group on the Multilateral Agreement on Investment (MAI), Multilateral Agreement on Investment (Report by the Chairman of the Negotiating Group), OECD Doc. DAFFE/MAI(98)9/FINAL (20 April 1998).

31 UNCTAD, Towards a New Generation of International Investment Policies (IIA Issues Note No. 5, July 2013) 7. See also Sornarajah M., ‘The Case Against a Regime on International Investment Law’, in Trakman Leon E. and Ranieri Nicola W. (eds.), Regionalism in International Investment Law (Oxford University Press, 2013) 475, 476–77; M Sornarajah, ‘An International Investment Court: panacea or purgatory?’ (15 August 2016) 180 Columbia FDI Perspectives.

32 On the alleged investor bias in ISDS, see, e.g., van Harten Gus, ‘Perceived Bias in Investment Treaty Arbitration’, in Waibel Michael et al. (eds.), The Backlash Against Investment Arbitration (Kluwer, 2010) 433. But see Franck Susan D., ‘Conflating Politics and Development? Examining Investment Treaty Arbitration Outcomes’ (2014) 55 Vanderbilt Journal of International Law 13, 61.

33 On the diversity of arbitrators, see Roberts Anthea, ‘Clash of Paradigms: Actors and Analogies Shaping the Investment Treaty System’ (2013) 107(1) American Journal of International Law 45, 87. But see Susan D. Franck et al., ‘Inside the Arbitrator's Mind’ (forthcoming, Emory Law Journal).

34 See Alschner Wolfgang, ‘Regionalism and Overlap in Investment Treaty Law: Towards Consolidation or Contradiction?’ (2014) 17 Journal of International Economic Law 271, 274, 279, 283, 284.

35 Voon Tania, Mitchell Andrew D., and Munro James, ‘Parting Ways: The Impact of Mutual Termination of Investment Treaties on Investor Rights’ (2014) ICSID Review: Foreign Investment Law Journal 451, 465–68. See also Voon and Mitchell, above n. 23; Harrison James, ‘The Life and Death of BITs: Legal Issues Concerning Survival Clauses and the Termination of Investment Treaties’ (2012) 13 Journal of World Investment and Trade 928.

36 Schill, above n. 5, 34–35.

37 Ibid. 39.

38 Ibid. 52–53.

39 Ibid. 57–58. Cf Montt Santiago, State Liability in Investment Treaty Arbitration: Global Constitutional and Administrative Law in the BIT Generation (Hart Publishing, 2009) 103.

40 UNCTAD (2013), above n. 31, 7.

41 UNCTAD, Investment Policy Framework for Sustainable Development (UNCTAD, 2015) 3.

42 Ibid. 5.

43 Ibid. 10.

44 Ibid. 13.

45 Ibid. 27.

46 Kathryn Gordon, Joachim Pohl, and Marie Bouchard, Investment Treaty Law, Sustainable Development and Responsible Business Conduct: A Fact Finding Survey (OECD Working Paper on International Investment 2014/01) 5–6.

47 OECD, Policy Framework for Investment (OECD Publishing, 2015 edition) 3, 11.

48 See, e.g., UNCTAD, Investment Policy Framework, above n. 41, 46.

49 UN General Assembly, Transforming our World: The 2030 Agenda for Sustainable Development, UN Doc. A/RES/70/1 (21 October 2015, following adoption of resolution on 25 September 2015).

50 OECD, Policy Framework, above n. 47, 28.

51 Ibid. 30.

52 See, e.g., UNCTAD, The Impact of International Investment Agreements on Foreign Direct Investment: An Overview of Empirical Studies 1998–2014 (IIA Issues Note, Working Draft, 24 September 2014).

53 See, e.g., UNCTAD, Taking Stock of IIA Reform (IIA Issues Note No. 1, March 2016); UNCTAD, World Investment Report 2015: Reforming International Investment Governance (2015) ch. III–IV.

54 See, e.g., Kathryn Gordon and Joachim Pohl, Investment Treaties Over Time – Treaty Practice and Interpretaiton in a Changing World (OECD Working Papers on International Investment 2015/02).

55 UNCITRAL, UNCITRAL Rules on Transparency in Treaty-based Investor–State Arbitration (entered into force 1 April 2014).

56 United Nations Convention on Transparency in Treaty-based Investor–State Arbitration (adopted 10 December 2014, opened for signature 17 March 2015, not yet in force) (Mauritius Convention).

57 See generally Lise Johnson, ‘The Mauritius Convention on Transparency: Comments on the Treaty and Its Role in Increasing Transparency of Investor–State Arbitration’ (CCSI Policy Paper, September 2014) and Esme Shirlow, ‘A Step toward Greater Transparency: The UN Transparency Convention’ (Kluwer Arbitration Blog, 30 March 2015).

58 European Commission, Concept Paper: Investment in TPP and Beyond: The Path for Reform (May 2015) 4. See also, e.g., EU, TTIP ch II – Investment: EU Proposal (12 November 2015) arts 9–11.

59 See above n. 55–56 and corresponding text.

60 Gabrielle Kaufmann-Kohler and Michele Potestà, ‘Can the Mauritius Convention Serve as a Model for the Reform of Investor–State Arbitration in Connection with the Introduction of a Permanent Investment Tribunal or an Appeal Mechanism? Analysis and Roadmap’, Geneva Center for International Dispute Settlement (3 June 2016).

61 Ibid. 97.

62 Ibid. 98.

63 Xi Jingping, President, People's Republic of China, G20 Summit 2016, China (1 December 2015).

64 Karl P. Sauvant, ‘China, the G20 and the International Investment Regime’, in Andrea Goldstein and Alessia Amighini (eds.), Towards the 2016 G20: Global Analyses and Challenges for the Chinese Presidency’ (2016) 24(4) China and the World Economy 73.

65 Ibid. 8.

66 UNCTAD, ‘UNCTAD Facilitates G20 Consensus on Guiding Principles for Global Investment Policymaking’ (Press Release, 11 July 2016).

67 Sauvant, above n. 64, 9.

68 See above section 3.

69 General Agreement on Tariffs and Trade 1947, GATT Doc. LT/UR/A-1/A/1/GATT/2, signed 30 October 1947 (applied as of 1 January 1948 via Protocol of Provisional Application).

70 WTO Ministerial Conference, Nairobi Ministerial Declaration, WTO Doc. WT/MIN(15)/W/33/Rev.3 (19 December 2015) [30]–[35].

71 Bernard M. Hoekman and Petros C. Mavroidis, ‘WTO “à la carte” or “menu du jour”? Assessing the Case for More Plurilateral Agreements’ (2015) 26(2) European Journal of International Law 319, 336 (discussing plurilateral agreements under Marrakesh Agreement annex 4). See also Bagwell Kyle, Bown Chad P., and Staiger Robert W., ‘Is the WTO Passé?’ (2016) 54(4) Journal of Economic Literature 1125, on the negative impact of PTAs on multilateral trade liberalization.

72 See, e.g., Gathii James Thuo, African Regional Trade Agreements as Legal Regimes (Cambridge University Press, 2011) ch. II (Variable Geometry: A Defining Aspect of African RTAs).

73 See, e.g., Mitchell Andrew D. and Voon Tania, ‘Operationalizing Special and Differential Treatment in the WTO: Game Over?’ (2009) 15 Global Governance 343.

74 See generally VanGrasstek Craig and Sauvé Pierre, ‘The Consistency of WTO Rules: Can the Single Undertaking Be Squared with Variable Geometry?’ (2006) 9(4) Journal of International Economic Law 837. Variable geometry might, alternatively, be understood as referring only to situations where different laws apply to different Members (e.g. under plurilateral WTO agreements as discussed further below). In contrast, for example, the general exceptions in GATT art. XX can be seen as allowing variation in fact, while applying the same laws to all WTO Members.

75 Marrakesh Agreement, annex 1C (Agreement on Trade-Related Aspects of Intellectual Property Rights) (TRIPS Agreement).

76 Marrakesh Agreement, annex 1B (General Agreement on Trade in Services) (GATS).

77 GATS art. XVII:1.

78 GATS art. II:2.

79 See Fourth Protocol to the General Agreement on Trade in Services, WTO Doc. S/L/20 (adopted 30 April 1996, entered into force 5 February 1998). See also WTO Council for Trade in Services, Decision on Commitments in Basic Telecommunications, WTO Doc. S/L/19 (30 April 1996).

80 WTO Negotiating Group on Basic Telecommunications, Reference Paper (24 April 1996). See also WTO, ‘The WTO Negotiations on Basic Telecommunications’, Press Release (6 March 1997), www.wto.org/english/news_e/pres97_e/refpap-e.htm (accessed 17 August 2016); WTO, World Trade Organization: Agreement on Telecommunications Services (Fourth Protocol to General Agreement on Trade in Services) (1997) 36 ILM 354, 367.

81 See WTO, Second Protocol to the General Agreement on Trade in Services, WTO Doc. S/L/11 (24 July 1995); WTO, Fifth Protocol to the General Agreement on Trade in Services, WTO Doc. S/L/34 (3 December 1997).

82 WTO Ministerial Conference, Ministerial Declaration on Trade in Information Technology Products, WTO Doc. WT/MIN(96)/16 (13 December 1996).

83 WTO Committee of Participants on the Expansion of Trade in Information Technology Products, Status of Implementation: Note by the Secretariat – Revision, WTO Doc. G/IT/1/Rev.55 (7 April 2016) [1].

84 WTO Ministerial Conference, Ministerial Declaration on the Expansion of Trade in Information Technology Products, WTO Doc. WT/MIN(15)/25 (16 December 2015).

85 See GATT Multilateral Trade Negotiations, Ministerial Declaration on the Uruguay Round, GATT Doc. MIN.DE (20 September 1986) [B(ii)]; WTO Ministerial Conference, Ministerial Declaration Adopted on 14 November 2001, WTO Doc. WT/MIN(01)/Dec/1 (Doha Declaration) [47].

86 Marrakesh Agreement, annex 4(c) (International Dairy Agreement); Marrakesh Agreement, annex 4(d) (International Bovine Meat Agreement). See also WTO, Termination of the International Dairy Agreement: Decision Pursuant to Article VIII:3, WTO Doc. IDA/8 (30 September 1997); WTO, Termination of the International Bovine Meat Agreement: Decision Pursuant to Article VI:3, WTO Doc. IMA/8 (30 September 1997).

87 Marrakesh Agreement, annex 4(a) (Agreement on Trade in Civil Aircraft); Marrakesh Agreement, annex 4(b) (Agreement on Government Procurement).

88 WTO Committee on Government Procurement, Adoption of the Results of the Negotiations under Article XXIV:7 of the Agreement on Government Procurement, WTO Doc. GPA/113 (2 April 2012).

89 See WTO, Agreement on Government Procurement: Parties, observers and accessions, https://www.wto.org/english/tratop_e/gproc_e/memobs_e.htm (accessed 16 August 2016).

90 Agreement on Trade Facilitation, opened for acceptance 27 November 2014, entered into force 22 February 2017.

91 Kati Suominen, Enhancing Coherence and Inclusiveness in the Global Trading System in an Era of Regionalism, E15 Task Force on Investment Policy – Policy Options Paper, E15 Initiative (ICTSD and World Economic Forum, January 2016) 15.

92 Lawrence Robert Z., Bressand Albert, and Ito Takatoshi, A Vision for the World Economy (Washington, DC: Brookings Institution, 1996).

93 Lawrence Robert Z., ‘Rulemaking Amidst Growing Diversity: A Club-of-Clubs Approach to WTO Reform and New Issue Selection’ (2006) 9(4) Journal of International Economic Law 823, 835.

94 USTR Froman Calls for “Pragmatic Multilateralism” in Charting WTO Course’ (20 October 2016) 20(35) Bridges .

95 Marrakesh Agreement art. II:3.

96 Hoekman and Mavroidis, above n. 71, 320.

97 Ibid. 336. See also Chad Bown, ‘Mega-Regional Trade Agreements and the Future of the WTO’, Discussion Paper Series on Global and Regional Governance (Council on Foreign Relations, September 2016) 7.

98 See Bown, above n. 97, 6.

99 Doha Declaration, [31].

100 See WTO, Committee on Trade and Environment in Special Session: Report by the Chairperson, Ambassador Syed Tauqir Shah, WTO Doc. TN/TE/23 (4 December 2015) [4].

101 APEC, 2011 Leaders’ Declaration (12 November 2011) annex C (Trade and Investment in Environmental Goods and Services).

102 APEC, 2012 Leaders’ Declaration (8 September 2012) annex C (APEC List of Environmental Goods).

103 APEC, ‘APEC Cuts Environmental Goods Tariffs’, News Release (28 January 2016).

104 Australia; Canada; China; Costa Rica; EU; Hong Kong, China; Japan; Korea; New Zealand; Norway; Singapore; Switzerland; Chinese Taipei; United States, Joint Statement Regarding Trade in Environmental Goods (Davos, 24 January 2014).

105 Ibid.

106 USTR, ‘United States and WTO Partners Announce Launch of Negotiations for Environmental Goods Agreement’, Press Release (8 July 2014).

107 Iceland, Israel, and Turkey.

108 Andrew Robb, Minister for Trade and Investment, Australia, ‘Environmental Goods Agreement Statement by the Chair’ (Nairobi, 14 December 2015). See also WTO, ‘DG Azevêdo welcomes progress in Environmental Goods Agreement’, News item (14 December 2015).

109 See, e.g., Bryce Baschuk, ‘Environmental Trade Talks Collapse Over Product List Discord’ (5 December 2016) International Trade Daily.

110 See, e.g., Bryce Baschuk, ‘Chinese Demands Threaten Environmental Goods Accord’ (21 November 2016) International Trade Daily.

111 See, e.g., Bryce Baschuk, ‘Environmental Goods Negotiators Make Incremental Progress’ (26 September 2016) International Trade Daily.

112 Department of Foreign Affairs and Trade, Australia, Trade in Services Agreement, http://dfat.gov.au/trade/agreements/trade-in-services-agreement/pages/trade-in-services-agreement.aspx (accessed 19 August 2016).

113 See, e.g., TiSA Members Endorse Work Plan, June Ministerial in Push for 2016 Deal’ (26 February 2016) 34.8 Inside US Trade .

114 Department of Foreign Affairs and Trade, Australia, TiSA: Frequently Asked Questions, http://dfat.gov.au/trade/agreements/trade-in-services-agreement/Pages/trade-in-services-agreement-frequently-asked-questions.aspx (accessed 18 August 2016).

115 See, e.g., Fortnam Brett, ‘TiSA Deal Halted by Trump's Win; Chief Negotiators to Meet Next Month’ (25 November 2016) 34.46 Inside US Trade .

116 GATS art. I:2(c).

117 See, e.g., WTO, Working Party on Domestic Regulation, Regulatory Issues in Sectors and Modes of Supply: Note by the Secretariat, WTO Doc. S/WPDR/W/48 (13 June 2012) [269]; UNCTAD, World Investment Report, above n. 53, 213.

118 TPP art. 10.1 (definition of ‘cross-border trade in services or cross-border supply of services).

119 TiSA draft provisions (21 June 2016, released by wikileaks 15 September 2016) art. I-1(2)(c).

120 Karl P. Sauvant, The Evolving International Investment Law and Policy Regime: Ways Forward, E15 Task Force on Investment Policy – Policy Options Paper, E15 Initiative (ICTSD and World Economic Forum, January 2016) 9.

121 Ibid. 46. See above n. 41.

122 Baldwin, Evenett, and Low, above n. 27, 137.

123 See, e.g., Lael-Arcas Rafael, International Trade and Investment Law: Multilateral, Regional and Bilateral Governance (Edward Elgar, 2010) 258259 ; Amarasinha and Kokott, above n. 5, 136–137.

124 European Commission, ‘Joint Statement by Commissioners Malmström and Hogan ahead of the 10th WTO Ministerial Conference in Nairobi’, News item (14 December 2015).

125 See Cecilia Malmström, ‘In Davos, discussing investment disputes’ (European Commission Blog, 19 January 2017); Prabhash Ranjan, ‘India Should Reconsider Its Stand on Investment at the WTO’ (13 February 2017) The Wire.

126 See WTO, The WTO: Secretariat and Budget – Divisions, https://www.wto.org/english/thewto_e/secre_e/div_e.htm (accessed 22 August 2016).

127 See, e.g., D. Ravi Kanth, ‘WTO DG's sleight of hand on new issues’ (1–15 June 2016) 618 Third World Economics 10. The name of the intellectual property division was also changed to encompass competition and government procurement, both of which were also ‘Singapore issues’ previously excluded from the Doha Round.

128 See above n. 28.

129 See, e.g., USTR, 2017 Trade Policy Agenda and 2016 Annual Report of the President of the United States on the Trade Agreements Program (March 2017) 1–3.

130 On the relationship between international trade law and international investment law, see, e.g., Kurtz Jürgen, The WTO and International Investment Law: Converging Systems (Cambridge University Press, 2016); Mitchell Andrew D., Heaton David, and Henckels Caroline, Non-Discrimination and the Role of Regulatory Purpose in International Trade and Investment Law (Edward Elgar, 2016).

131 See Luke Eric Peterson, ‘Analysis: EU and Canada Convene Dozens of Countries This Week to Discuss Informally a Multilateral Investment Court, While Institutional “Ownership” of Formal Negotiations Remain Unclear’ (13 December 2016) Investment Arbitration Reporter.

132 Lael-Arcas, above n. 123, 258. See also Amarasinha and Kokott, above n. 5, 126, 135.

133 See, e.g., Caporal Jack, ‘US–China BIT Offer Exchange Expected Before September G20 Meeting’ (19 August 2016) 34.33 Inside US Trade ; ‘DeLauro, “We've heard nothing from the administration” on BIT’ (1 March 2017) Inside US Trade's Daily Report.

134 Sauvant, above n. 120, 10.

135 Free Trade Agreement between the Government of Australia and the Government of the People's Republic of China, signed 17 June 2015 (entered into force 20 December 2015) ch. 9.

136 Agreement between the Government of Australia and the Government of the People's Republic of China on the Reciprocal Encouragement and Protection of Investments, signed 11 July 1988, [1988] ATS 14 (entered into force 11 July 1988).

137 The Parliament of the Commonwealth of Australia, Joint Standing Committee on Treaties, Report 154 – Treaty tabled on 17 June 2015: Free Trade Agreement between the Government of Australia and the Government of the People's Republic of China (Canberra 15 June 2015) (tabled 19 October 2015) [5.7]–[5.8].

138 Joel Dahlquist, ‘Brazil and India Conclude Bilateral Investment Treaty’ (28 November 2016) Investment Arbitration Reporter.

139 Revised India Model BIT released December 2015.

140 Revised Norway Model BIT released 13 May 2015.

141 See, e.g., Lauge N. Skovgaard Poulsen, Bounded Rationality and Economic Diplomacy: The Politics of Investment Treaties in Developing Countries (Cambridge University Press, 2015); Wolfgang Alschner, ‘The Impact of Investment Arbitration on Investment Treaty Design: Myth Versus Reality’, Yale Journal of International Law (forthcoming) 57.

142 Poulsen, above n. 141, ch. 6.

143 Alschner, n. 141, 70.

144 Alschner, above n. 34, 274; See also Alschner Wolfgang and Skougarevskiy Dmitriy, ‘The New Gold Standard? Empirically Situating the Trans-Pacific Partnership in the Investment Treaty Universe’ (2016) 17 Journal of World Investment and Trade 339, 341, 371.

145 Alschner, above n. 34, 284.

146 See generally Voon Tania (ed.), Trade Liberalisation and International Co-operation: A Legal Analysis of the Trans-Pacific Partnership Agreement (Edward Elgar, 2013); Lim C. L., Elms Deborah, and Low Patrick (eds.), The Trans-Pacific Partnership: A Quest for a Twenty-first Century Trade Agreement (Cambridge University Press, 2012).

147 TPP ch. 25. See, e.g., Mitchell Andrew D. and Sheargold Elizabeth, ‘The TPP and Good Regulatory Practices: An Opportunity for Regulatory Coherence to Promote Regulatory Autonomy?’ (2016) 15(4) World Trade Review 587.

148 TPP ch. 15.

149 TPP ch. 17.

150 TPP ch. 14.

151 TPP ch. 20.

152 TPP ch. 19.

153 Department of Foreign Affairs and Trade, Australia, Trans-Pacific Partnership Agreement: News, http://dfat.gov.au/trade/agreements/tpp/news/Pages/news.aspx (accessed 19 August 2016).

154 Prime Minister Malcolm Turnbull and Minister for Trade and Investment Andrew Robb, Australia, ‘Historic Asia-Pacific Trade Agreement Opens New Era of Opportunities’, joint media release (6 October 2015).

155 TPP countries, Trans-Pacific Partnership Ministers’ Statement (4 February 2016).

156 TPP art. 30.5.2.

157 ‘Presidential Memorandum Regarding Withdrawal of the United States from the Trans-Pacific Partnership Negotiations and Agreement’ (Press Release, 23 January 2017).

158 See, e.g., USTR, 2017 Trade Policy Agenda, above n. 129, 1, 6, 7.

159 TPP art. 9.23.3.

160 TPP art. 9.24.

161 TPP art. 9.24.1(c), (d).

162 TPP art. 9.24.2.

163 Unlike the GATT 1947 dispute settlement system, ISDS under the TPP does not generally require the respondent State to endorse or consent to the arbitral proceedings or award. Each TPP party provides consent to arbitration in TPP art. 9.20.

164 Notification by Australia pursuant to Article 29.5 of the Trans-Pacific Partnership Agreement (15 February 2016); National Interest Analysis (Australia) [2016] ATNIA 4 (4 February 2016) [5]; Trans-Pacific Partnership National Interest Analysis (New Zealand) (25 January 2016) 252.

165 See Mitchell Andrew D., Voon Tania, and Whittle Devon, ‘Public Health and the Trans-Pacific Partnership Agreement’ (2015) 5(2) Asian Journal of International Law 279, 290293 .

166 See, e.g., TPP art. 9.6.2, annex 9-A, annex 9-B.

167 See Todd Allee and Andrew Lugg, ‘Who Wrote the Rules for the Trans-Pacific Partnership?’ (July–September 2016) Research and Politics 1; Alschner and Skougarevskiy, above n. 144, 341, 349.

168 See, e.g., TPP arts. 9.5.3, 9.6.4, 9.6.5, 9.8.6, 9.16, n. 14.

169 Department of Foreign Affairs and Trade, Australia, Trans-Pacific Partnership Agreement – Outcomes: Investment (last update 12 October 2015). In support of this conclusion, see Alschner and Skougarevskiy, above n. 144, 359–360.

170 TPP art. 30.4.1. See also Alschner, above n. 34, 280.

171 See, e.g., ‘Asian Nations Eye Joining TPP Despite Push to Finish RCEP This Year’ (19 August 2016) 34.33 Inside US Trade.

172 Agreement to Amend the Singapore–Australia Free Trade Agreement, signed 13 October 2016 (not yet in force), amending the Singapore–Australia Free Trade Agreement, signed 17 February 2003 [2003] ATS 16 (entered into force 28 July 2003), as amended from 24 February 2006, 13 February 2007, 11 October 2007, and 2 September 2011. See ch. 8 art. 22 (as per 2016 amendments).

173 See European Commission, above n. 58 and corresponding text.

174 European Union–Viet Nam Free Trade Agreement (text released 1 February 2016 before legal review) arts. 12–15.

175 Comprehensive Economic and Trade Agreement between Canada, of the One Part, and the European Union and Its Member States, of the Other Part (signed 30 October 2016, approved by European Parliament 15 February 2017).

176 Peterson, above n. 131.

177 Bengt Ljung, ‘EU, Canada to Launch Investor Protection Court Proposal’ (12 December 2016) International Trade Daily.

178 See, e.g., Brett Fortnam, ‘Future of TTIP in Flux as Trump Has Said Little on Trade Issues with Europe’ (11 November 2016) 34.44 Inside US Trade.

179 See, e.g., Krista Hughes and Philip Blenkinsop, ‘US Wary of EU Proposal for Investment Court in Trade Pact’ (29 October 2015) Reuters.

180 See, e.g., WTO, United States – Laws, Regulations and Methodology for Calculating Dumping Margins (Zeroing): Communication from the United States, WTO Doc. WT/DS294/16 (17 May 2006).

181 See Statement by the United States at the Meeting of the WTO Dispute Settlement Body (23 May 2016).

182 See Statement by the United States at the Meeting of the WTO Dispute Settlement Body (Geneva, 23 May 2016).

183 Investment Treaty Working Group, International Arbitration Committee, American Bar Association Section on International Law, Investment Treaty Working Group: Task Force Report on the Investment Court System Proposal: Initial Task Force Discussion Paper (14 October 2016) 135.

184 John Gaffney, ‘The EU proposal for an Investment Court System: What Lessons Can Be Learned from the Arab Investment Court?’ (29 August 2016) 181 Columbia FDI Perspectives.

185 European Commission, above n. 58, ch. II, s. 3, arts. 9(5), 10(5).

186 WTO, Post-Employment Guidelines: Communication from the Appellate Body, WTO Doc. WT/AB/22 (16 April 2014).

187 European Commission, above n. 58, ch. II, s. 3, art. 11.

188 Ibid., annex II, art. 6.

189 Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) annex 2 (Understanding on Rules and Procedures Governing the Settlement of Disputes) (DSU), art. 17.3.

190 European Commission, above n. 58, ch. II, s. 3, art. 11.1.

191 Ibid. n 6. See also Stephan Schill, ‘The European Commission's Proposal of an “Investment Court System” for TTIP: Stepping Stone or Stumbling Block for Multilateralizing International Investment Law?’ (22 April 2016) 20(9) ASIL Insights.

192 CETA art. 8.27.5.

193 CETA art. 8.30.1.

194 CETA art. 8.30.1, n. 12.

195 CETA art. 8.10.2.

196 CETA art. 8.10.4.

197 CETA arts. 8.10.6–8.10.7.

198 CETA arts. 8.9.1–8.9.2.

199 Australia, Brunei Darussalam, Japan, Malaysia, New Zealand, Singapore, and Viet Nam.

200 Office of the Press Secretary, The White House, ‘Statement by the President on the Trans-Pacific Partnership’, Press Release (5 October 2015).

201 See, e.g., David Tweed, ‘As Trump Kills TPP, China Ready to Fill Trade Void’ (23 November 2016) International Trade Daily.

202 Statement by Australian Chief Negotiator Michael Mugliston, 12th Trade Negotiating Committee and Related Meetings, Stakeholder event (Perth, 27 April 2016).

203 Model Text for the Indian Bilateral Investment Treaty (revised version released December 2015). See also Alschner and Skougarevskiy, above n. 141, 369–370.

204 See Das Sanchita Basu, Sen Rahul, and Srivastava Sadhana, ‘Can ASEAN + 1 FTAs Be a Pathway Towards Negotiating and Designing the Regional Comprehensive Economic Partnership (RCEP) Agreement?’ (2016) 50(2) Journal of World Trade 253.

205 ASEAN Comprehensive Investment Agreement, signed 26 February 2009 (entered into force 29 March 2012).

206 Agreement Establishing the ASEAN–Australia–New Zealand Free Trade Area, signed 27 February 2009, [2010] ATS 1 (entered into force 1 January 2010).

207 See Asian Trade Centre, ‘RCEP: Looking Ahead To 2017’ (14 December 2016).

208 See, e.g., ‘The new political divide’ (30 July 2016) The Economist.

209 See, e.g., Energy Charter Treaty: Unified Agreement for the Investment of Arab Capital in the Arab States, signed 26 November 1980 (entered into force 7 September 1981); Agreement on the Promotion, Protection and Guarantee of Investments among Member States of the Organization of the Islamic Conference, signed 5 June 1981 (entered into force 23 September 1986).

The first draft of this article was written during my period as Scholar in Residence with the Arbitration Group of Wilmer Cutler Pickering Hale and Dorr LLP in London (August 2016). I am grateful for the firm's support. This article forms part of independent research funded by the Australian Research Council pursuant to the Discovery Project scheme (project ID DP130100838) and by Melbourne Law School pursuant to the Melbourne Collaborative Project Fund. For helpful comments I thank the anonymous referees, L Alan Winters, Andrew D Mitchell, and the participants at the conference of the PluriCourts Centre of Excellence on Adjudicating International Trade and Investment Disputes: Between Interaction and Isolation (University of Oslo, 25 August 2016) and at the Biennial Conference of the International Economic Law Interest Group of the American Society of International Law (Georgetown University Law Center, 30 September 2016). This article expresses my personal opinions as an academic. Any errors or omissions are mine.

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World Trade Review
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