Renouncing Investor-State Dispute Settlement in Australia, Then New Zealand: Déjà Vu

42 Pages Posted: 2 Feb 2018 Last revised: 18 Mar 2018

Amokura Kawharu

University of Auckland - Faculty of Law

Luke R. Nottage

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

Date Written: February 1, 2018

Abstract

New Zealand’s newly elected Labour coalition government announced in October 2017 that it would not agree to investor-state dispute settlement (ISDS) provisions in future trade and investment agreements, and would try to amend them in the Trans-Pacific Partnership (TPP) agreement. This has triggered a resurgence of newspaper coverage of ISDS, in contrast to the diminishing coverage in Australia (Part 1). The policy shift leaves a strong sense of déjà vu, namely the Gillard Government Trade Policy Statement of 2011 that eschewed ISDS for Australia until its general election of 2013, and New Zealand’s stance complicates negotiations for the (ASEAN 6) Regional Comprehensive Economic Partnership (Part 2). Yet other treaties have recently been signed, amended or negotiated by one or both countries, including one jointly with Pacific Island countries excluding ISDS that has been little reported (Part 3).

There has also been very little reporting about ISDS case developments related to Australia, even two inbound claims filed or threatened in addition to the infamous Philip Morris Asia case, and not to mention several outbound ISDS claims that raise interesting issues for treaty negotiators (Part 4). There should be a fuller review and discussion about how each country should approach investment treaty negotiation and dispute settlement mechanisms, especially jointly (Part 5). This includes promoting the alternative of an investment court (or at least some of its core features), as favoured by the European Union and now being slowly investigated along with ISDS reforms through the United Nations.

Keywords: foreign investment, international economic law, investment law, dispute resolution, arbitration, investor-state dispute settlement (ISDS), Australia, New Zealand, Asia-Pacific

JEL Classification: K10, K30

Suggested Citation

Kawharu, Amokura and Nottage, Luke R., Renouncing Investor-State Dispute Settlement in Australia, Then New Zealand: Déjà Vu (February 1, 2018). Sydney Law School Research Paper No. 18/03. Available at SSRN: https://ssrn.com/abstract=3116526

Amokura Kawharu

University of Auckland - Faculty of Law ( email )

Private Bag 92019
Auckland Mail Centre
Auckland, 1142
New Zealand

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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