Australia, China, and the Co-Existence of Successive International Investment Agreements

Colin Picker, Heng Wang and Weihuan Zhou (eds), The China Australia Free Trade Agreement: A 21st Century Model (Hart Publishing), Forthcoming

19 Pages Posted: 30 Jan 2017  

Tania S.L. Voon

University of Melbourne - Melbourne Law School

Elizabeth Sheargold

University of Melbourne, Law School, Students

Date Written: January 25, 2017

Abstract

The relationship between the bilateral investment treaty (‘BIT’) between Australia and China (1988) and the preferential trade agreement between those countries (‘ChAFTA’) (2015) provides an interesting case study of the co-existence of successive treaties under public international law. ChAFTA contains but a skeleton of an investment chapter, centred on national treatment and most-favoured nation obligations, yet with a range of substantive and procedural protections of policy space. The parties have agreed to negotiate a comprehensive investment chapter in the coming years. But the pre-existing BIT already contains standard investment protections including provisions on fair and equitable treatment and expropriation. Do those obligations continue to apply in the post-ChAFTA world? If so, are the regulatory protections in ChAFTA sufficient to protect the parties’ sovereign autonomy, despite their absence from the BIT itself? The answers to this puzzle lie at the intersection between the relevant general provisions of the Vienna Convention on the Law of Treaties and the ChAFTA provisions on its relationship to other treaties. A close reading of these different provisions suggests that the modern clarifications in ChAFTA are unlikely to affect the interpretation or application of the ‘old style’ Australia-China BIT, leaving the latter obligations in place without textual nuance, and Australia in particular open to an ISDS claim on the basis of those broad obligations.

Keywords: international investment law, treaty law, public international law, China, Australia

JEL Classification: K33

Suggested Citation

Voon, Tania S.L. and Sheargold, Elizabeth, Australia, China, and the Co-Existence of Successive International Investment Agreements (January 25, 2017). Colin Picker, Heng Wang and Weihuan Zhou (eds), The China Australia Free Trade Agreement: A 21st Century Model (Hart Publishing), Forthcoming. Available at SSRN: https://ssrn.com/abstract=2905516

Tania Voon (Contact Author)

University of Melbourne - Melbourne Law School ( email )

University of Melbourne
Victoria 3010
Australia

Elizabeth Sheargold

University of Melbourne, Law School, Students ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria
Australia

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