Investor-state arbitration: the roadmap from the multilateral agreement on investment to the trans-Pacific partnership agreement

Sappideen, Razeen and He, Ling Ling (2012) Investor-state arbitration: the roadmap from the multilateral agreement on investment to the trans-Pacific partnership agreement. Federal Law Review, 40 (2). pp. 207-227. ISSN 0067-205X

Abstract

Capital exporting countries have attempted to protect the overseas investments of their multinational corporations (MNC) against host nation governments expropriating these investments, limiting the right to repatriate profits, or subjecting the withdrawal of their investments to heavy penalties. The aborted Multilateral Agreement on Investment (MAI) of the mid-1990s was an attempt at transferring these concerns to a settled legal framework between nations. Some limited expression of this is found in the provisions of the World Trade Organisation (WTO) Dispute Settlement Understanding, while more substantive assertions are found in the investor-state dispute settlement (ISDS) provisions of bilateral trade and investment agreements entered into between developed and developing economies. However, recent legal challenges and associated public relations campaigns by MNC directed at Public Law and Health measures have caused governments to reassess the situation. A classic example of this has been the challenge by tobacco companies against the plain cigarette packaging legislation introduced by the Canadian and Australian governments. The Australian Government's response to this through its statement of position in respect of future bilateral agreements and its Tobacco Plain Packaging Act 2011 (Cth) is equally path breaking. This article examines the dramatic turnaround in perspective of States in respect of Investor-State arbitration, and its impact on the Trans-Pacific Partnership Agreement (TPP) currently being negotiated.


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Item Type: Article (Commonwealth Reporting Category C)
Refereed: Yes
Item Status: Live Archive
Additional Information: Permanent restricted access to published version in accordance with the copyright policy of the publisher.
Faculty / Department / School: Historic - Faculty of Business and Law - School of Law
Date Deposited: 10 Aug 2014 05:54
Last Modified: 02 Feb 2017 04:17
Uncontrolled Keywords: Multilateral Agreement on Investment; MAI; taxation law; profit repatriation; plain packaging; cigarette advertising
Fields of Research : 18 Law and Legal Studies > 1801 Law > 180117 International Trade Law
16 Studies in Human Society > 1606 Political Science > 160607 International Relations
18 Law and Legal Studies > 1801 Law > 180125 Taxation Law
Socio-Economic Objective: B Economic Development > 91 Economic Framework > 9101 Macroeconomics > 910110 Taxation
URI: http://eprints.usq.edu.au/id/eprint/25621

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