Investor-State Dispute Settlement Between Developed Countries:  Reflections on the Australia-United States Free Trade Agreement

Dodge, William S.

doi:10.2139/ssrn.749504

Cited by 9 publications

(7 citation statements)

References 10 publications

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“…Indeed, in August of that same year, the Australian Government formalised its alarm over the Phillip Morris suit by formally discontinuing the inclusion of ISDS provisions in any new trade agreements . Many, including Australian scholars examining the free trade negotiations between the United States and Australia, completed in 2005, were advocating a shift towards a more state‐centric form of dispute settlement that would only take effect after domestic legal avenues had been exhausted (Dodge, ). Interestingly, the investment chapter of the US–Australian FTA has no automatic ISDS provisions and heavily skews decisions over disputes, including investment, to the state‐to‐state consultative procedures outlined in Chapter 21; specifically, the Joint Committee comprised of government officials from each country…”

Section: Chapter 11's Linguistic Can Of Wormsmentioning

confidence: 99%

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How did investor‐state dispute settlement get a bad rap? Blame it onNAFTA, of course

Anderson

2017

World Economy

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In the short history of the US bilateral investment treaty (BIT) programme, there have been no instances of dispute settlement cases initiated against the United States by firms from BIT countries. The NAFTA experience changed that. Where other studies have only hinted at the reasons for NAFTA controversies, this paper makes clear three causal factors: (i) changing patterns and intensity of FDI, (ii) the application of those rules to developed countries amid those changing FDI patterns and (iii) ambiguities in ISDS rules themselves. The paper explores these and traces the ways in which lessons of the NAFTA have been instrumental in changing the pursuit of investment protection agreements. BITs used to be uncontroversial, but the NAFTA focused attention on reforms to ISDS that maintain the utility of BITs in the governance of FDI, without creating a legal structure for simply challenging the state.

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Section: Chapter 11's Linguistic Can Of Wormsmentioning

confidence: 99%

“…In 2006, the United States and Australia concluded a Free Trade Agreement without investment provisions (Dodge, ). In 2011, Australia went further and made it blanket policy to eschew them in all future agreements .…”

Section: Introductionmentioning

confidence: 99%

How did investor‐state dispute settlement get a bad rap? Blame it onNAFTA, of course

Anderson

2017

World Economy

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“…31 For this reason it was vigorously resisted by Australia and excluded from the AUSFTA. 32 In its submission to the USTR on the TPPA, Philip Morris's case for a multilateral investor-state provision maintained:…”

Section: Investor-state Provisions and Health Policymentioning

confidence: 99%

Public Health and Medicine Policies

Townsend¹,

Faunce²

2010

No Ordinary Deal: Unmasking the Trans-Pacific Partnership Free Trade Agreement

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This chapter examines the extent to which the proposed Trans-Pacific Partnership Agreement may impact on public health and medicines policies in the countries party to the agreement. Its predictions are based chiefly on a critical analysis of two sets of submissions from influential US health and medicines-related corporations and industry bodies to the US Trade Representative (USTR) in 2009. The first set of submissions was on the TPPA itself and the second arose in relation to the Section 301 Trade Watch List. The submissions sought TPPA provisions that fell into four broad categories: (1) impeding the market entry of generic medicines and increasing the monopoly privileges of patented medicines; (2) restricting the capacity of governments to operate evidence-based systems that assess the cost-effectiveness of health technologies; (3) creating committee mechanisms for ongoing lobbying of governments on these issues; and (4) including investor-state dispute settlement procedures that would allow foreign corporations to sue governments if their investments are impeded, for example, by public health legislation. When the first formal round of TPPA negotiations was held in Melbourne from 15-19 March 2010, health and medicines issues were not phrased in the above terms. Instead, the brief official memorandum released afterwards to the public stated that future negotiations were officially set to include investor-state dispute settlement, ways to promote 'regulatory coherence' and how to ensure small-to-medium corporate enterprises (SMEs) are able to benefit from the agreement. 1 Naturally, the communiqué did not present these issues as reflecting a US industry agenda for health and medicine policy that would in effect be pushed onto the other parties. Yet, this is exactly what is likely to happen, if only because no TPPA nation except the US has a powerful health industry sector with the capacity to influence the negotiation agenda so strongly. This is partly a function of the size of the respective economies, but it also reflects a protracted and fundamental lack of vision and organisation among the TPPA Health and Medicines Provisions Free trade agreements were initially designed to reduce tariffs or taxes placed at the border on goods coming from one country to another. In time, however, various US industry groups have successfully transformed US-led trade agreements into opportunities to facilitate their monopoly advantage by influencing the legislation and policies that other countries can implement, under threat of trade sanctions. This happened particularly in areas of intellectual property rights (IPRs, now also referred to as intellectual monopoly privileges or IMPs) such as copyright, trade marks and patents (especially pharmaceutical patents). Multilateral trade agreements that have impacted on domestic public health and medicines policies include the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) (which required, for instance, increased pharmaceutical ...

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“…It is speculated that the experience of NAFTA and the type of cases brought under it made Australia shun such a provision in the FTA. See further Dodge (2006). 24 The International Centre for the Settlement of Investment Disputes was established by a Convention sponsored by the World Bank, the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, 1965.…”

Section: The Seeds Of Neo-liberalismmentioning

confidence: 99%

A law for need or a law for greed?: Restoring the lost law in the international law of foreign investment

Sornarajah

2006

Int Environ Agreements

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Investor-State Dispute Settlement Between Developed Countries: Reflections on the Australia-United States Free Trade Agreement

Cited by 9 publications

References 10 publications

How did investor‐state dispute settlement get a bad rap? Blame it onNAFTA, of course

How did investor‐state dispute settlement get a bad rap? Blame it onNAFTA, of course

Public Health and Medicine Policies

A law for need or a law for greed?: Restoring the lost law in the international law of foreign investment

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