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Notes: Investment Arbitraion

1. Government can regulate investments. ISDS provides it gives an opportunity for investors to
bring the dispute to internation arbitration if they find that they can agree, but there are a
lot o fsafeguards we saveguard this through TPPA.

Michael Ewing-Chow WTO Chair NUS

ANTI Globalisation Trends and FDI

2. The gains of free trade are oversold and underappreciated


3. Jobs are being lost but not caused by trade.
4. Visible immigration is increasing Xenophobia
5. Developing countrires are becoming capital exporters
6. Outgoing investors from Developing countries also want rule of law and greater certainty
7. What is happening in ASIAN is the rice of global value chain, Asia has become major
exporters yet there is still in asia and rest of the world on concerns of corruption.
8. Because of this concerns, regimes are being created
9. Early 1987 Agreement for the promotion and protection of investment
10.
11. when Asean require approval that investment to be approved
12.
13. ASEAN IIAs korea china NZ Australia Japan and pending India
14. More than 80% cases filed in last 5 years people are beginning aware of this option when
local remedies are not available. They will go for ISDS
15. 3 trends because of pushback
16. Trend 1 ISDS or not?
a. Canada and EU has argued for an investment courts
b. Some asea nstates have suggested IIAs without compulsory submission to ISDS
instead preferring local adjudication or mutual consent to ISDS on a case by case
basis India and Indonesia may end up with no ISDS in such circumstnaces
c. Australia TPP includes ISDS, TTIP is understain as EU is lookingat investment court
d. Subtrend is states lk SA and brazil.

17. Trend 2 refinement of IIAs


a. Most recents IIAs include refinement for definition of
i. MFN (nonapplication to dispute settlement)
ii. Indirect expropriation
iii. Fair and equitable treatment
b. General exeption ASEAN IIAs include them but TPP does not but has ISAs
c. Refinement of ISDS procedures for preliminaru question..

18. Trend 3 investment chapters in FTAs rather than BITs


a. Not just investment protection but investment facilitation and liberalization
b. Incorporation of statemnst about sustainable devleopemnet environmtal and
social concern
c. Increasing use of reservations and care out like aus tobacco control ISDS carve out
and sign tax measures taken for actual physical space pupbli policu objectives

Lucy Reed on her take challenges to ASEAN committee whether it oblige rule of law.
19. The current regime for
20. Treaty arbitration is so much better now and with the cases, only now really only starting
and only increase. We have the benefit in participating in practice which is more mature.
21. Philip morris loss the cig packaging case against Australia.
22. The new treaties and the FDAs are incorporating the judgment from older cases, there is
more protection in environment and public health and self judging national security
derogations. Clarification of governance and
23. The united states deserves to be criticized on many front but not ISDS because US has been
the leader in bringing ISDS clauses in treaties back down not a form of imperialism but there
are better governance of public interest in the new model.
24. I have a lot of criticism on the system. Do I think that there is a good idea to have a matrix of
decisions interpreting clauses that appear again and again in the treaties? No.
25. It is very important for people to remember that the gov entered into these treaties and no
company has very implemented these treaties but company use these treaties.
26. A point of international has never been national courts and ISDS court. It is the use of force
to distract gov of public policy concerns and arbitration.
27. There must also be some dispute resolution mechanism.

Avinash pradhan

28. It is useful to remind outselves what ITA is all about.


29. I dont think anyone will find them particularly controversial.
30. You afford the investment in your country fair and equitable treatment.
31. The provision and full and adequate security that means the state must give some form of
respect to the investors
32. Treaty obligation equal treatment to investors from home state and from other state.
33. Fourth standard that you make sure you dont expropriate ehte investors without
providing any compensation.
34. Ultimately, states have consented to this. A treaty is not something that is imposed upon
states, its entered into voluntarily.
35. When we hear big criticism of ISDS, the criticism is in at the process, it is important not to
forget that these treaties can play an important role in investment in the country.
36. The idea of developing countires being capital exporters and importers- we are taking it
defensively.
37. I might pick up 2 examples of treaty has helped.
38. Lets look at the case of a Malaysian compaby for bemnefit of Malaysian company. Malaysian
company invest in Chile. MTD give capital in chile foreign investment for suburban project.
39. Chilean gov refused zoning permission for that. The Malaysian entity used treaty provisions
that they are supposed to be compensation and they succeeded.
40. Lucy will take issue with the interpretation of the treaty for benefit of investor.
41. But actually these treaties and system of dispute settlement, it can be helpful.
42. Aseans are recent example relates to india. It shows perhaps more acutely, how these
provisions can be of benefit to invesetor.
43. Devans supposed to use satellite space and sell satelites to gov India. An audit report was
leaked to the press. In that audit report there was certain things men tioned of procurement
of contract concerns and there was a hint at there being corruption. What then happened
was the indian gov decided to terminate the contract. The reason they use to terminate was
not corruption but an apparent force majeure, which is no space for satellite. This case went
to international dispute settlement.
44. If the government is going to terminate the contract, it must be for valid reasons. If no valid
reasons its wrong in refernece to treaty rights.
45. If there was corruption, then it must be established properly. If you are going to terminate a
contract, you must say that you are doing it for the right reason and say the reason clearly. If
there was a consent to treaty, what is wrong with that.
46. Aside to something the gov is consented to. The gov will also behave in its actions and not
play around with foreign investors. In that sense, its useful on gov and their actions.

Kamraj

47. The Malaysian aspect. From the previous speakers, there is not been an awful lot going on
in Malaysia.
48. There has been 2 malaysian cases in which Malaysia has been the respondent to ISID
arbitrations where Malaysian companies have been claimants to foreign government.
49. Malaysian historical salvis case that was really a peripheral involvement.
50. If we are talking about Malaysian perspective is when we are advising international cleitn
and very often, it is on involvement of lack
51. They have got possible recourts in investor states treaty provisions.
52. The reality is that most people dont feel that they are going to get a fair crack of the whip in
the states court when they are fighting against the state.
53. So when we tell them they have another option, they are interest.
54. ISDS not fair? Because they specialize internation firm. Government dont have the same
access to the resources.
55. Its the old idea that if you find yourself in a fair fight you can find someone got it wrong.
56. Who is going to staff these investment courts?
57. If you are going to have invements court set up to deal with Malaysian ISDS cases, you would
have had some judges who are free for last 20 years,
58. How does EXID fits in with ISDS?
59. ISDS treaty arbitration is the process of arbitrators deciding of allegations of claimants
against the state. It can be done on adhoc basis using the rules and the people. And exid is
the leading institution for treaty arbitration. Exid has no investment treaty but an office in
Washington take take money and help appoint arbitrators. The second biggest institution is
permanent arbitration based in the hay.
60. When choosing different forums, I often get coments that the investors prefer not to go to
EXID because exid is tailored usualy for states because exid is tailored
61. Treaty obligaiotn is fair and equitable treatment standard is basis is that the standard
importaed a legitimate expection created by the state.
62. But lucy disagree because . the standard created by treatuy tribunal is to examine a invester
legitimate expectation and looking for concrete letter of what those expectations wheera s
opposed to made up the idea of what expections is
63. It is taoally made up to create fair equitable treatment and legitimate expectation.

We are at the downswing to legitimate expectation to sound lk too easy.

64. Punlic law phrased legitimate expectation is now into contract law. The whole jurisdict
category is a fascinating interface.
65. ISDS seems to violate the very basic tenat of how arbitration is supposed to be consented.
66. Anbywhere any time in the world, you can be subjected to this processes.
67. The objection is that thse ISDS is sucked inot this effect. The judiciary is corrupt, what
happened to tobacco case.
68. Tobacco bypassed Australian government.
69. There are countries without these investmenet agremeents with these flourishing staff
south Africa. Indian has 20 cases.
70. Code of ethics within freshfields. Why no code of ethics pre-TPP?
71. Look at Ecuador case, they breach agreement. Tribunal recognized the agreement. This is
disproportionate and should have done a less severe mechanism to resolve.
72. Issue of consent, ISDS is like carlil carbolic smoke ball. If you come to my country to invest, I
will give you an alternative dispute mechanism.
73. On issue of Australia case, this is part and parcel of any offer to people at large.
74. South Africa, if you look at what happen in south Africa. Investments going into these
coubtry oil and minerals.
75. Japan in asean is for industrial long term infrastructure.
76. Third party is not emulance chasing because third party funding come in after claimant
commenced arbitration. The case is running before.
77. English courts allowed awarding third party funding costs.
78. Its not fair to criticize a case that has gone to national court on contract theory and a case
on international treaty case.
79. States prevail the empirical work no shows in atleast half of the cases brought against them.
Its expensive to prevail and ..
80.