Foreign Investment and Dispute Resolution Law and Practice in Asia: An Overview

Abstract

International investment, especially Foreign Direct Investment (FDI), continues to grow apace across the Asian region, despite the Asian Financial Crisis and now the aftermath of the Global Financial Crisis (GFC). This paper is based on the introductory chapter for our 13-volume book (Foreign Investment and Dispute Resolution Law and Practice in Asia, forthcoming in October 2011 from Routledge). The book surveys both substantive law affecting FDI and investment dispute resolution law and practice, focusing on major capital exporting and importing countries in the region (especially Japan, China, India, Korea, Indonesia, Malaysia and Vietnam). Another distinguishing feature of the book is the way it integrates comparative law studies of domestic legal systems with analyses of important emerging trends in international investment treaty law. With a Preface from the President of the International Bar Association, the book also brings together further chapters from a diverse group of senior and up-and-coming academics and practitioners expert in these fields:

- Preface (by Akira Kawamura)

- Investment Arbitration in Asia: Five Perspectives on Law and Practice (Luke Nottage and J. Romesh Weeramantry)

- A Passive Player in International Investment Law: Typically Japanese? (Shotaro Hamamoto)

- The Quandary for Chinese Regulators: Controlling the Flow of Investment into and out of China (Vivienne Bath)

- China’s Investment Treaties: A Procedural Perspective (Nils Eliasson)

- Foreign Investment in Indonesia: The Problem of Legal Uncertainty (Simon Butt)

- The Japan-Indonesia Economic Partnership Agreement: An Energy Security Perspective (Sita Sitaresmi)

- Malaysia’s New Foreign Investment Law Regime (Salim Farrar)

- Treaty Definitions of ‘Investment’ and the Role of Economic Development: A Critical Analysis of the Malaysian Historical Salvors Cases (Govert Coppens)

- The ‘Object and Purpose’ of Indian Investment Agreements: Failing to Balance Investment Protection and Regulatory Power (Prabhash Ranjan)

- The Evolution of Korea’s Investment Treaties and Investor-State Dispute Settlement Provisions (Joongi Kim)

- Legal Issues in Vietnam’s FDI Law: Protections under Domestic Law, Bilateral Investment Treaties and Sovereign Guarantees (Hop Dang)

- Review of Asian Views on Foreign Investment Law (Muthucumaraswamy Sornarajah)

The present paper sets the scene for these other chapters in the book by outlining key features and some current controversies about FDI flows and the regulatory regimes under domestic and international law. Part II presents an historical overview of economic development and foreign investment in Asia, including the ASEAN sub-region, as well as the most recent trends. Part III provides a brief introduction to dispute resolution more generally throughout Asia. Part IV offers short summaries of the other chapters in the book.

Keywords: Foreign Investment (FDI), FDI Regulation, International Law, International Economic Law, Comparative Law, Asian Law, Arbitration, Dispute Resolution, Bilateral Investment Treaties (BITs), Free Trade Agreements (FTAs)

JEL Classification: K10, K30, K33