The 'Anti-ISDS Bill' Before the Senate: What Future for Investor-State Arbitration in Australia?

Abstract

This paper highlights an unusual recent development in Australia on a topical issue regionally and world-wide. On 6 August 2014, the Senate’s Foreign Affairs, Defence and Trade Legislation Committee held public hearings on The Trade and Foreign Investment (Protecting the Public Interest) Bill 2014, introduced on 3 March by Senator Peter Whish-Wilson of the Australian Greens Party. His very short private Member’s Bill seeks to prevent the Australian government from entering into any future treaties containing provisions on investor-state dispute settlement (ISDS). This paper: (i) briefly provides some background to the Bill, (ii) reproduces my written Submission urging instead carefully negotiated and drafted ISDS and substantive investment treaty provisions, and (iii) adds my Responses to Questions on Notice (including an Appendix comparing provisions in Australia’s recently-signed Free Trade Agreement with Korea, compared to earlier FTAs with Chile and ASEAN). A further Appendix provides an edited transcript of my oral evidence presented at the Senate’s public hearings. The paper ends with: (iv) a brief overview and extracts from the Committee’s Report on 28 August 2014, which agreed that the Bill should not be enacted.

Keywords: International law, investment law, dispute resolution, arbitration, Commonwealth law, legislative process, Australia, Korea, Asia-Pacific

JEL Classification: K10, K30, K33