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Appropriate Treaty-Based Dispute Resolution for Asia-Pacific Commerce in the 21st Century

University of New South Wales Law Journal, Vol. 35, No. 3, pp. 1013-1040

Sydney Law School Research Paper No. 12/37

32 Pages Posted: 24 May 2012 Last revised: 2 Nov 2012

Micah Burch

The University of Sydney Law School

Luke R. Nottage

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

Brett G. Williams

Independent

Date Written: May 24, 2012

Abstract

Bilateral and regional trade and investment treaties (‘FTAs’ and ‘BITs’) have proliferated in the Asia-Pacific region, along with double-tax treaties (‘DTTs’). But countries like Australia have recently become more concerned about FTAs and BITs. This article examines processes that states can agree to, especially through commitments made in treaties before disputes arise, that are likely to minimize claims being filed or escalated and therefore to promote sustainable cross-border trade and investment. Part II concentrates on inter-state trade dispute resolution, whereas Part III concentrates on the controversial area of investor-state arbitration. The latter analysis draws partly on innovations and experiences in DTT arbitration and international tax dispute resolution more generally, outlined in Part IV. The article focuses especially on the extent to which enhanced transparency in dispute resolution processes may lead to settlements or more appropriate management of cross-border disputes across these three main areas of treaty practice, which are often not compared with each other.

Keywords: dispute resolution, international economic law, arbitration, tax law, double tax treaties, international investment law, FDI, Asian Law, Arb-Med, mediation, Free Trade Agreements (FTAs), World Trade Organization (WTO), transparency

JEL Classification: K10, K30, K33, K34

Suggested Citation

Burch, Micah and Nottage, Luke R. and Williams, Brett G., Appropriate Treaty-Based Dispute Resolution for Asia-Pacific Commerce in the 21st Century (May 24, 2012). University of New South Wales Law Journal, Vol. 35, No. 3, pp. 1013-1040; Sydney Law School Research Paper No. 12/37. Available at SSRN: https://ssrn.com/abstract=2065636

Micah Burch

The University of Sydney Law School ( email )

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

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

Brett G. Williams

Independent ( email )

No Address Available

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