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

International Trade and Business Law Review, Vol. XVIII, pp. 245-293, 2015

Sydney Law School Research Paper No. 14/76

52 Pages Posted: 22 Aug 2014 Last revised: 20 Apr 2015

Luke R. Nottage

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

Date Written: August 20, 2014

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

Suggested Citation

Nottage, Luke R., The 'Anti-ISDS Bill' Before the Senate: What Future for Investor-State Arbitration in Australia? (August 20, 2014). International Trade and Business Law Review, Vol. XVIII, pp. 245-293, 2015; Sydney Law School Research Paper No. 14/76. Available at SSRN: https://ssrn.com/abstract=2483610 or http://dx.doi.org/10.2139/ssrn.2483610

Luke 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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