TDM Call for Papers "The Pacific Rim and International Economic Law: Opportunities and Risks of the Pacific Century"
17 February 2014
Update January 2015: TDM 1 (2015) - The Pacific Rim and International Economic Law: Opportunities and Risks of the Pacific Century has been published.
Economic activity within the Pacific Rim region has been expanding at such an extraordinary rate that the 21st century has been labeled as the "Pacific Century". Such activity is regulated in significant part by a comparably dynamic international economic law regime. Ambitious and active negotiations continue apace for two vast trade agreements that would cover much of the Pacific Rim region: the Trans-Pacific Partnership (TPP) and the Regional Comprehensive Economic Partnership (RCEP). If finalized, those two agreements would represent, respectively, approximately 40% and 27% of the global GDP.
While recent State practice in the Pacific Rim region has reflected a keen interest in ambitious free trade agreements, the views of Pacific Rim States toward investment treaties have been decidedly mixed. The world's two largest economies-the United States and China-recently completed an 11th round of bilateral investment treaty (BIT) negotiations; at the same time, however, Pacific Rim States such as Ecuador and, until recently, Australia have sharply criticized investor-State dispute settlement as a flawed method for resolving international investment disputes.
The new Australian Government has agreed to ISDS in its Korea FTA negotiations and has signaled its willingness to negotiate the issue for the FTA with Japan and now this week for the TPP. Peru has made adjustments in light of its investment treaty program by creating a coordination and response system for international investment disputes. Japan, China, and Korea recently entered into a trilateral investment treaty that may offer insights into the future direction of their respective investment treaty programs.
The formidable scale and pace of economic and legal development in the Pacific Rim region offers considerable opportunities, but also carries certain risks. The forthcoming Pacific Rim TDM Special Issue will collect views of experienced practitioners, academics, and policymakers on key economic and legal opportunities and risks in the Pacific Rim region today. Topics to be addressed could include, but are not limited to, the following:
1. TPP and RCEP: Competition, Coordination, or Consolidation?
- Should the parallel TPP and RCEP negotiations be coordinated in some way? If so, how?
- Should and could APEC play a role in the possible coordination or consolidation of the regional economic treaty making processes in the Pacific Rim, particularly between the TPP and RCEP negotiations?
- Should China join the TPP negotiations? Should the TPP negotiating States seek China's participation?
2. A U.S.-China BIT as a 21st Century Model BIT?
- To what extent could a U.S.-China BIT serve as a model BIT for a new generation of investment treaties?
- With respect to balancing the interests of foreign investors and host governments, should future global BIT practice achieve a balance similar to the one reflected in the 2012 U.S. Model BIT? If so, to what extent?
- What key features distinguish China's fourth generation of investment treaties? What impact might such features have on future global BIT practice?
3. Pacific Rim Investment Treaty Practice: Regional Considerations
- Does the 2011 Gillard Government Trade Policy Statement reflect current Australian policy on investor-State dispute settlement?
- Does the recent Japan-China-Korea Trilateral Investment Agreement offer insights into the future direction of the respective Japanese and Korean investment treaty programs?
- To what extent can Peru's coordination and response system for international investment disputes serve as a model for neighboring Pacific Rim States such as Colombia, Ecuador, and Chile?
4. Pacific Rim Approaches to Key Legal Issues
- Market access. In a joint statement with the United States, China announced that a U.S.-China BIT would include "pre-establishment" protections and would be negotiated pursuant to a negative list approach. China's Shanghai free trade zone also has adopted a negative list approach with respect to foreign investment. What impact might such developments have on foreign investment in China?
- Fair and equitable treatment. Will greater specificity with respect to the fair and equitable treatment obligation, as reflected in recent treaty practice by the United States, China, and Canada lead to greater predictability and more consistent outcomes in investment treaty cases?
- Competitive neutrality. Does the goal of maintaining a level playing field between private and state-owned enterprises merely serve protectionist ends?
- Environment and labor. Should States follow the environmental and labor provisions of the 2012 U.S. Model BIT, pursuant to which States commit not to weaken their existing environmental and labor laws in order to encourage investment, and the Environmental and Labour chapters of recent U.S. free trade agreements such as the Korea-US agreement (KORUS) which provide for binding State-State dispute resolution of certain environmental or labour disputes?
- Extraterritorial application of anti-corruption measures. What limits, if any, should apply to the extraterritorial application of anti-corruption measures? Have such limits been respected in recent U.S. practice under the Foreign Corrupt Practices Act?
The editors of the Pacific Rim TDM Special Issue are Wenhua Shan (Xi'an Jiaotong University School of Law) and Mark Feldman (Peking University School of Transnational Law).
Professor Wenhua Shan
Xi'an Jiaotong University
Peking University School of Transnational Law
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