Article from: TDM 1 (2015), in Editorial
Introduction - "The Pacific Rim and International Economic Law: Opportunities and Risks of the Pacific Century"
Recent State practice strongly suggests that the international economic law architecture for the 21st century largely will be shaped in the Pacific Rim region. Negotiations of two "mega-regional" free trade agreements - the Trans-Pacific Partnership (TPP) and the Regional Comprehensive Economic Partnership (RCEP) - continue to advance. Japan, Korea, and China recently concluded a trilateral investment agreement. The world's two largest economies - China and the United States - held their 17th round of bilateral investment treaty negotiations in December. Japan has announced a "Revitalization Strategy," identifying a number of economic priorities, including the negotiation of new investment agreements. Asia-Pacific Economic Cooperation (APEC) members recently agreed to launch a feasibility study, proposed by China, to consider a potential Free Trade Area of the Asia-Pacific agreement (FTAAP).
At the same time, however, international economic law challenges in the Pacific Rim region remain significant. Overlapping treaties can create a "noodle bowl" of complex, unpredictable rules. Japan and Australia recently opted not to include an investor-State dispute settlement mechanism in their free trade agreement, and Indonesia has announced that it will not renew its existing bilateral investment treaties. The impact of certain rapidly developing areas of law in the Pacific Rim region, such as anti-corruption and intellectual property law, is only beginning to emerge. Treaty practice aimed at achieving a level playing field between state-owned and privately-owned enterprises remains, to date, limited.
This TDM Special Issue collects views of more than thirty contributors, based in more than ten countries, on these and other key international economic law issues facing the Pacific Rim region.
The Pacific Rim special begins with introductory remarks by J. Christopher Thomas, Q.C., who observes that "plurilateral treaty negotiations such as the TPP, if successful, will usher in a new era" of treaty practice, which holds great potential for achieving "a much greater degree of investment treaty policy convergence between North America, the European Union and Asia than has previously been the case." Current treaty practice-particularly in the Pacific Rim region, where investment treaty-making "continues unabated"-also is raising important "new issues," such as how investment obligations should be applied in cases involving state-owned enterprises or corrupt actors. The papers collected in the Pacific Rim special contribute to "our collective understanding" of this "new world of investment treaty-making and investment treaty arbitration."
Regarding negotiations of "mega-regional" trade agreements in the Pacific Rim region, the Special Issue includes three articles addressing the TPP and one article addressing the RCEP. In "The Case Against China's Joining the Trans-Pacific Partnership," Ming Du maintains that the TPP poses "a serious policy challenge to China as a new rising power" and recommends, in light of several factors including the potential for significant concessions and regulatory reform, that China not join the TPP negotiations. Christopher Hunt and Colin Trehearne explore Japan's interest in the TPP in "Japan in the Pacific Century: Opportunities and Challenges arising from the TPP." In that article, Hunt and Trehearne examine several economic and political factors driving Japan's participation in the TPP negotiations. Alastair Henderson and Gitta Satryani, in "Regulating State Owned Enterprises in the TPP: The View from South East Asia," analyze the TPP as an instrument that likely will, for the first time, establish a set of binding rules applicable to SOEs that are agreed to by a large number of States. Teerawat Wongkaew, in "Disentangling the RCEP Noodle Bowl: Legal and Policy Challenges," recommends that RCEP negotiators include consideration of the "noodle bowl effect" - the complexity and lack of predictability that can result from a multi-layered investment agreement regime. Wongkaew analyzes whether a consolidation approach would be the most effective response by RCEP negotiators to the existence of overlapping treaties.
Two contributors address the ongoing US-China BIT negotiations. Kristina Andjelic, in "A U.S.-China BIT - Resolution of Investment Disputes in Context of Transparency Issues," analyzes the role that a U.S.-China BIT could play in contributing to the social legitimacy of investor-State arbitration. In "Political Economy of China-U.S. BIT Negotiation: Whose Decisive Pursuit of Leadership in Institutional Transformation?" Wang Peng addresses how an evolving power dynamic between the United States and China might impact U.S.-China BIT negotiations.
A set of articles analyzes key international economic law developments in individual Pacific Rim countries (Australia, Indonesia, Canada, China, and Japan) and groups of countries (China/Korea/Japan; The Pacific Islands). Three of those articles focus on Australia: "Investor-State Dispute Resolution in Australia: A Changing Landscape for Investors," by Leon Chung, Donald Robertson, Kate Lindeman, and Anne Hoffmann, "Do Many of Australia's Bilateral Investment Treaties Really Not Provide Full Advance Consent to Investor-State Arbitration? Analysis of Planet Mining v. Indonesia and Regional Implications," by Luke Nottage, and "Locating Australia on the Pacific Rim," by Leon Trakman and Kunal Sharma. Chung, Robertson, Lindeman, and Hoffmann analyze Australia's new "case-by-case" approach to ISDS, including options for the use of provisions intended to safeguard against ISDS-related risks. Nottage discusses implications for Australian investment treaties arising from the recent Planet Mining v. Indonesia Decision on Jurisdiction, where the Tribunal found the Australia-Indonesia BIT did not include a full, advance consent to arbitrate by Indonesia. Trakman and Sharma consider Australia's ISDS policy in light of Australia's political and economic interests, particularly in connection with key trading partners in the Pacific region.
Michael Ewing-Chow and Junianto James Losari consider recent international investment law developments in Indonesia in "Reflective or Reactionary? Indonesia's Approaches to International Investment Agreements and Recommendations for the Future." Following consideration of Indonesia's investment policies and experience as a respondent in investor-State arbitration, Ewing-Chow and Losari offer recommendations for a new Indonesian model BIT.
Matthew Levine examines Canada's treaty practice in the Pacific Rim region in "Canada-China FIPPA & Canada-Korea FTA: Recent Canadian Pieces in the Pacific Rim Investment Treaty Jigsaw." Levine observes that Canada's recent treaty practice reflects a "fluid negotiating dynamic" by taking a "case-by-case approach to key" investment treaty provisions.
Two articles consider the future of investment law in China. In "Investor Protection in the China (Shanghai) Pilot Free Trade Zone," Shu Shang recommends that greater investor protections, including an integrated foreign investment insurance system, should be available within the Shanghai Free Trade Zone. In "Pending Issues in China's BITs: National Treatment, Environmental Protection and Enforcement of Award," Li Li analyzes how China's investment treaty program will need to adapt to a rapidly increasing level of Chinese outbound foreign direct investment.
Two articles examine Japan's international investment regime. In "Japan's Ambitious International Investment Agreement Policy - Laying the Groundwork for Future Disputes?" Jonathan Stoel, Tomoko Ishikawa, and Michael Jacobson predict that Japan will secure treaty coverage for its investors "in the major sites of Japanese foreign investment around the world" and that Japanese investors will capitalize on such expanded coverage by bringing investment treaty claims. In "What (Japanese) Investors Should Consider Before Commencing an Investment Arbitration," Lars Markert analyzes key factors for Japanese investors to consider when preparing an investment arbitration claim, including available treaty coverage, early consultations with damages experts, forms of home State assistance, and third-party financing.
In "Coordinating Exceptions in Domestic Instruments and International Investment Law: Insight into the Japan-China-Korea Trilateral Investment Treaty," Qiang Ren analyzes, with respect to foreign investment protections, exceptions available under Chinese domestic law and the Japan-China-Korea trilateral investment treaty. Ren argues that China's increasing reliance on exceptions in its international investment treaty practice will serve as a counterbalance to China's decreasing reliance on exceptions in its domestic law, such as applicable law in the Shanghai FTZ.
With respect to securing protections for international trade in services, Bregt Natens and Radika Kumar address strategic considerations for States located in the Pacific Islands region. In "The Pacific Islands and Trade in Services: One Step Back to Take Two Steps Forward," Natens and Kumar recommend that fourteen States in the Pacific Islands region join either the TPP or RCEP negotiations in order to ensure "easy integration of the Pacific services trading system" into a larger market.
A set of articles examines particular disciplines and protections that are of central importance for ongoing treaty negotiations in the Pacific Rim region (state-controlled entities, fair and equitable treatment, anti-corruption, and intellectual property). Two articles examine disciplines and protections applicable to state-controlled entities: "Competitive Neutrality in the Trans-Pacific Partnership (TPP) Negotiations on International Investment," by Bao Jin, and "State-Controlled Entities as Qualified 'Investors': Implications for the Pacific Region Investment Treaty Making," by Lu Wang. Jin analyzes the regulatory efficacy of an emerging set of disciplines applicable to State-owned entities and prospects for including such disciplines in a TPP agreement. Wang recommends-given the sharp growth in outbound investment by state-controlled entities and existing uncertainty with respect to the availability of investment treaty protections for such investment-that States in the Pacific Rim region clarify the applicability of treaty protections to investments by state-controlled entities.
Two articles address the content of the fair and equitable treatment obligation: Patrick Dumberry, in "Drafting the Fair and Equitable Treatment Clause in the TPP and RCEP: Lessons Learned from the NAFTA Article 1105 Experience," and Wenjuan Zhang, in "Will Greater Specificity with Respect to the Fair and Equitable Treatment Obligation Lead to Greater Predictability in Investment Treaty Cases?" Dumberry recommends that drafters of the TPP and RCEP agreements build on the experience of NAFTA jurisprudence and current EU-Canada Comprehensive Economic and Trade Agreement (CETA) negotiations by expressly listing particular elements included within the obligation. Zhang also addresses the CETA approach of specifying particular elements of the fair and equitable treatment obligation, concluding that such an approach might contribute to, but cannot guarantee, greater predictability and consistence in arbitral practice.
Two articles address the rapidly developing area of anti-corruption measures: "Anti-Corruption Legislation in the Asia-Pacific: Disparate Extraterritorial Measures" by Cecilia Nassare, and "Canada's Anti-Corruption Framework and the Relevance to the Pacific Rim and TPP Negotiations," by Noemi Gal-Or. Gal-Or discusses Canada's active anti-corruption efforts, which are reflected not only in domestic legislation but also international trade policy, including, potentially, disciplines in a TPP agreement. Nassare explores the relationship between the extraterritoriality of domestic anti-corruption measures in certain States in the Asia-Pacific region and corruption rates in those States.
Regarding the emerging international intellectual property regime in the Pacific Rim region, Anlei Zuo considers the potential impact of the "institutional fragmentation" of the regime on its authority and legitimacy.
Taken together, these contributions-by more than thirty authors based in more than ten countries-address key issues facing the Pacific Rim region at a particularly opportune time: a moment when the Pacific Rim region is shaping, to a very significant extent, the international economic law architecture for the 21st century.