Host states are increasingly adding investor–state dispute settlement (ISDS) provisions to investment treaties alongside inter-state arbitration provisions. They require investors to commit to substantive obligations such as non-discrimination, fair and equitable treatment and adequate compensation for expropriation.
Standalone bilateral investment treaties proliferated from the early 1990s as the communist bloc disintegrated and Asia moved towards a socialist market economy. As the WTO and OECD struggled to develop a multilateral treaty for investment liberalisation and protection, ISDS-backed investment chapters were folded into burgeoning bilateral and regional free trade agreements (FTA). The latest example in the Asia Pacific is the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP).
ISDS claims have burgeoned as investment flows have grown alongside an expanding network of treaty commitments. Asian states and their outbound investors were somewhat under-represented compared to those from other regions. But this has changed in recent years – ‘institutional barriers’ to bringing or defending cases have diminished.
Arguably reflecting ‘availability bias’, the first inbound ISDS claims tend to lead host states to rethink the benefits of this kind of dispute resolution option for investors. They often sign fewer new investment treaties in the aftermath, but signings eventually resume after a few years. Often host states have been able to fend off ISDS claims and continue to offer a commitment to attract foreign investment in an increasingly competitive global market. A 2018 study found that most ASEAN states had been subject to at least one treaty-based ISDS claim but had not had any claims enforced against them.
This pattern is not only true of developing countries. In 2011, Australia’s first ISDS claim was brought by Philip Morris under an old bilateral investment treaty (BIT) with Hong Kong regarding Australia’s tobacco packaging legislation. The Labor government declared that it would no longer accept ISDS provisions in future treaties, impeding the conclusion of FTAs with South Korea, China and Japan – existing or potentially large inbound investors eager to have ISDS protection.
Those treaties were concluded by the Liberal–National Coalition government from 2013 when it reverted to including ISDS provisions after case-by-case assessments. Existing treaties were mostly left alone but Australia refreshed an earlier FTA with Singapore and signed a new BIT with Uruguay, both including CPTPP-like – tighter, substantive and procedural – provisions, while retaining ISDS. Australian outbound investors have become more aware of and willing to commence treaty-based ISDS arbitration.
Despite never having an inbound treaty-based claim and Australia winning the Philip Morris arbitration in 2015, New Zealand’s Labour-led government decided to eschew ISDS provisions in new treaties from November 2017. They even partly opted out of ISDS provisions in the CPTPP through bilateral side-letters, although ISDS-backed protections remain available under other FTAs.
Australia’s Labor Party maintained its policy against ISDS while in opposition. This was problematic for the Coalition government, which lacked a majority in the Senate. Labor nonetheless voted with the government to legislate tariff reductions under new FTAs, agreeing that ratification was still in the national interest. The Coalition government retained power in the 2019 election, claiming a few more seats in the lower house but still only a razor-thin majority. If Labor remains opposed to ISDS, by-elections and developments in the Senate could again result in complications ratifying treaties.
The best way forward in Australia remains a bipartisan agreement domestically, but also with New Zealand and perhaps other Asia Pacific states reassessing ISDS, to promote a hybrid dispute resolution option – a permanent ‘investment court’. Adopting this mechanism helps address concerns about delays, costs, neutrality and the diversity of ISDS arbitrators appointed. Treaty states (never the investors directly) would appoint ‘judges’ to a panel, with a subset promptly selected when investors lodge claims. The mechanism also precludes acting as counsel in other ISDS cases, although the new CPTPP Code of Conduct helpfully bans this ‘double hatting’ anyway, as some urged during ratification inquiries. An appeal mechanism could help minimise inconsistent or incorrect rulings.
Yet allowing investors to trigger the court process would minimise the inefficiencies and potential inequities of having to mobilise a home state to enforce treaty commitments through inter-state arbitration. It also avoids the problems of relying on domestic law and courts, particularly in developing countries. As an Australian investor’s claim against Thailand indicates, political risk insurance is often not a perfect substitute even for expropriation claims. It generally does not provide coverage for several international law-based protections commonly spelt out in contemporary treaties.
The investment court compromise should be politically feasible, especially for Australia and New Zealand, as it is distinct from traditional, ’improved’ ISDS or even ISDS with additional appellate review mechanisms. The European Union insists on the model due to local backlash against often high-profile ISDS claims, but it has also been ruled clearly compatible with EU law. The model is already found in FTAs with Vietnam, Singapore and Canada, and the European Union is presently negotiating FTAs with several other Asia Pacific countries.
Investment courts in bilateral and regional treaties are also the best way forward from a policy perspective. They can build a multilateral mechanism that economists and others would prefer on efficiency and legitimacy grounds. This alternative to ISDS should dampen some over-ambitious claims – reflected in claim-to-award ratios – and may encourage other innovation such as ‘med-arb’. Promisingly, the newly-signed Australia–Indonesia FTA allows the host state to require mediation before the investor can initiate arbitration. Econometric analysis also suggests that qualified ISDS commitments have had a greater effect in increasing FDI flows than ISDS-backed treaties.
Shifting towards a new model is always hard, especially for cautious officials who may prefer the ’known unknowns’ in conventional ISDS. But Australia, New Zealand and the Asian region now have the opportunity to lead the way in an era that sees the region already emerging as a ‘rule-maker’ in international investment law.
Dr Luke Nottage is a Professor at Sydney Law School, the University of Sydney, and Founding Co-Director of the cross-institutional Australian Network for Japanese Law (ANJeL). This commentary first appeared in East Asia Forum.