The ASEAN Comprehensive Investment Agreement: Realizing a Regional Community

Abstract

In recent decades, States have concluded numerous regional investment treaties, even as the feverish growth in bilateral investment treaties worldwide continues apace. This increasing regionalism within international investment law is a double-edged phenomenon. On the one hand, the risks of fragmentation and incoherence increase exponentially as a regional layer is added to the already-messy “spaghetti bowl” of investment treaties. The noble dream of a uniform, multilateralized set of investment-protection standards thus looks ever more unattainable. On the other hand, a regional investment treaty affords an opportunity for a group of States to balance, in a particularistic manner, between investment-related obligations and other non-investment priorities. This essay focuses on the ASEAN Comprehensive Investment Agreement signed in 2009, arguing that it is a region-specific bargain embedded within ASEAN's wider normative and institutional framework. The potential conflicts between ASEAN Member States' investment-related obligations and their commitments under two other regional projects are explored, and recommendations are made as to how arbitral tribunals can manage such conflicts.

New Investment Rulemaking in Asia: Between Regionalism and Domestication

“…Akin to the US Model BIT and the NAFTA, the ACIA goes beyond traditional BITs by incorporating more detailed arbitration procedures than those of the ICSID Convention. 106 As a key issue of investment reforms, the interpretation of fair and equitable treatment (FET) has resulted in long-standing controversies in ISDS cases. Myanmar is the only ASEAN country that includes FET in domestic investment law, but its scope of FET is narrower than that of most IIAs.…”