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

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