The ASEAN Comprehensive Investment Agreement and ‘ASEAN Plus’ – The Australia-New Zealand Free Trade Area (AANZFTA) and the PRC-ASEAN Investment Agreement

INTERNATIONAL INVESTMENT LAW: A HANDBOOK, M. Bungenberg, J. Griebel, S.Hobe & A. Reinisch, eds., Nomos Verlagsgellschaft: Germany, 2015

Sydney Law School Research Paper No. 13/69

24 Pages Posted: 27 Sep 2013 Last revised: 20 Mar 2015

See all articles by Vivienne Bath

Vivienne Bath

The University of Sydney Law School

Luke R. Nottage

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

Date Written: September 26, 2013

Abstract

The Association of South-East Asian Nations (ASEAN) was founded in 1967 partly for political and security reasons, but its main purposes are to accelerate economic growth, social progress and cultural development. Over time, the aim of expanding trade has also come to encompass the objective of encouraging and increasing investment within the ASEAN region, and between the region and other countries around ASEAN. In 2009, the 10 ASEAN states signed the Comprehensive Investment Agreement, which creates a detailed framework for mutual investment within the ASEAN region and came into effect in 2012. ASEAN has also entered into a number of (“ASEAN”) free trade agreements with countries such as China, Australia-New Zealand, Japan, Korea and India, which refer to the liberalisation of mutual investment. It is also the centrepiece of the (“ASEAN 6”) Regional Comprehensive Economic Partnership agreement under negotiation since late 2012. This paper discusses the approach taken by ASEAN to investment and resolution of investment disputes, leading up to the Comprehensive Investment Agreement and the issues which this Agreement presents in relation to implementation. It assesses some commentators’ claims that some member states (and other parts of the Asian region) are still quite ambivalent about investment liberalisation and investor-State dispute settlement procedures. It then discusses the existing ASEAN economic cooperation treaties and their provisions in relation to investment, with a particular focus on AANZFTA. For example, it examines the exclusion of conditions covering Australia-New Zealand cross-investments and the question of dispute resolution, particularly in light of the (then) Gillard Government’s Trade Policy Statement announcement in April 2011 that changed Australia’s longstanding policy stance to eschew all forms of treaty-based investor-State dispute settlement in future treaties.

The Chapter also touches on a related important development affecting ASEAN and regional economic integration: the Trans-Pacific Partnership Agreement (“TPPA”). The TPPA was signed in 2005 by Singapore, Brunei, New Zealand and Chile; but Vietnam, Malaysia, Australia, Peru, the USA, Mexico, Canada and Japan are now negotiating accession. It too is premised on the addition of an Investment Chapter, with investor-State arbitration provisions also proving to be contentious.

Keywords: International law, International investment law, Asian law, Comparative law, Dispute resolution, International arbitration, Trade and investment treaties, Free Trade Agreements (FTAs)

JEL Classification: K10, K30, K33

Suggested Citation

Bath, Vivienne and Nottage, Luke R., The ASEAN Comprehensive Investment Agreement and ‘ASEAN Plus’ – The Australia-New Zealand Free Trade Area (AANZFTA) and the PRC-ASEAN Investment Agreement (September 26, 2013). INTERNATIONAL INVESTMENT LAW: A HANDBOOK, M. Bungenberg, J. Griebel, S.Hobe & A. Reinisch, eds., Nomos Verlagsgellschaft: Germany, 2015; Sydney Law School Research Paper No. 13/69. Available at SSRN: https://ssrn.com/abstract=2331714

Vivienne Bath

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

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