Foreign Investment In and Out of Japan: Economic Backdrop, Domestic Law, and International Treaty-Based Investor-State Dispute Resolution

Transnational Dispute Management, Forthcoming

Sydney Law School Research Paper No. 10/145

60 Pages Posted: 26 Dec 2010 Last revised: 27 Jul 2011

Shotaro Hamamoto

Kyoto University - Faculty of Law

Luke R. Nottage

The University of Sydney Law School ; The University of Sydney - Australian Network for Japanese Law

Date Written: December 26, 2010

Abstract

This paper provides the first-ever detailed analysis of the dispute resolution provisions contained in Japan’s burgeoning international investment treaties (BITs and FTAs or EPAs). That development is also located in the context of Japan’s inbound and outbound flows in foreign investment and the background domestic law limiting or protecting foreign investment, as well as an overview of the process by which the Japanese government negotiates these treaties. The paper concludes that the considerable diversity in treaty provisions (especially regarding investor-state arbitration or ISA) increases transaction costs for governments and investors, but leaves scope to develop some innovative provisions (eg on Arb-Med or transparency of proceedings) at a time of considerable debate over the pros and cons of ISA.

Our related paper focuses on the substantive provisions of Japan's investment treaties: forthcoming in Chester Brown and Devashish Krishan (eds) Commentaries on International Investment Agreements (OUP, 2011).

Keywords: Japan, Trade and Investment Policy, Bilateral Investment Treaties (BITs), Free Trade Agreements (FTAs), International Economic Law, International Investment Law, International Arbitration, Foreign Investment Regulation, Constitutional Law, Japanese Law

JEL Classification: K01, K20, K30, K33

Suggested Citation

Hamamoto, Shotaro and Nottage, Luke R., Foreign Investment In and Out of Japan: Economic Backdrop, Domestic Law, and International Treaty-Based Investor-State Dispute Resolution (December 26, 2010). Transnational Dispute Management, Forthcoming; Sydney Law School Research Paper No. 10/145. Available at SSRN: https://ssrn.com/abstract=1724999

Shotaro Hamamoto

Kyoto University - Faculty of Law ( email )

Yoshida-Honmachi
Sakyo-ku
Kyoto, 606-8501
Japan

HOME PAGE: http://www.hamamoto.law.kyoto-u.ac.jp

Luke R. Nottage (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

The University of Sydney - Australian Network for Japanese Law

Room 640, Building F10, Eastern Avenue
Sydney, NSW 2006
Australia

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