Australia's Position on Investor–State Dispute Settlement: Fruit of a Poisonous Tree or a Few Rotten Apples?

Sydney Law Review 40:213

42 Pages Posted: 29 Aug 2018

See all articles by Kyle D. Dickson-Smith

Kyle D. Dickson-Smith

The Chartered Institute of Arbitrators; University of Melbourne

Bryan Christopher Mercurio

Chinese University of Hong Kong - Faculty of Law; University of New South Wales - Faculty of Law

Date Written: July 25, 2018

Abstract

This article critically analyses the methodology and substantive basis of Australia’s initial rejection of, and subsequent ambivalence towards, investor–State dispute settlement (‘ISDS’) mechanisms contained in international investment agreements. The analysis focuses on the Australian Government Trade Policy Statement of 2011, as well as the 2010 and 2015 reports of the Australian Productivity Commission that largely informed the conclusions of the Trade Policy Statement. The article reveals that Australia’s analysis was incomplete and lacking meaningful discourse on the general concerns and benefits of ISDS in light of Australia’s regional relationships and the global political economy. Consequently, an adequate debate on the virtues of ISDS has yet to take place in Australia. In the absence of a clear and consistent investment policy, this article provides guidance for Australia’s future policy, such as threshold criteria for the inclusion of ISDS and a model investment treaty. With the European Union and United States expressing dissatisfaction with the present system of ISDS, this article is timely and has broad relevance.

Keywords: ISDS, Investor-state, Free Trade Agreement, Investment Court, Australia, Australian Productivity Commission, Trade Policy Statement, AUSFTA, TPP, CETA, TTIP, FDI

JEL Classification: K33, F10, F13

Suggested Citation

Dickson-Smith, Kyle D. and Mercurio, Bryan Christopher, Australia's Position on Investor–State Dispute Settlement: Fruit of a Poisonous Tree or a Few Rotten Apples? (July 25, 2018). Sydney Law Review 40:213. Available at SSRN: https://ssrn.com/abstract=3235897

Kyle D. Dickson-Smith (Contact Author)

The Chartered Institute of Arbitrators ( email )

12 Bloomsbury Square
London, WC1A 2LP
United Kingdom

University of Melbourne ( email )

185 Pelham Street
Carlton, Victoria 3053
Australia

Bryan Christopher Mercurio

Chinese University of Hong Kong - Faculty of Law ( email )

6/F Western Teaching Complex
Shatin, New Territories
Hong Kong
(852) 2696 1139 (Phone)

University of New South Wales - Faculty of Law

Kensington, New South Wales 2052
Australia

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