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Potential Investor-State Dispute Settlement Provisions in Trans-Pacific Partnership Agreement – A Change in Policy for Australia?

By Beth Cubitt and Tom French

The proposed Trans-Pacific Partnership Agreement (TPPA) – a multi-lateral agreement proposed between a number of countries, currently including Australia, Canada, Japan, Malaysia, Mexico, Peru, the United States and Vietnam (although it is hoped to be an open platform welcoming other countries to participate) – is currently the subject of much debate. TPPA countries will potentially account for approximately 39% of the world’s GDP, with Australia’s portion of trade representing AUD215 million. By 2025, the TPPA is expected to account for USD233 billion in trade per year, and is said to set the “economic architecture” for the region.
But will the TPPA contain i [...]

Joint Interpretations, a TPP Investment Chapter, and Australia

Negotiations to establish a Trans-Pacific Partnership (TPP) agreement have been active and ambitious. Following 18 negotiating rounds since 2010, TPP talks now include 12 States, representing nearly 40 percent of global GDP. Scholars have observed that a TPP agreement, given its scale, could provide “staggering” economic benefits as well as a “genuine Asia-Pacific integration track.”

But the TPP negotiations, particularly with respect to the potential inclusion of an investor-State dispute settlement mechanism, have been criticized on policy grounds by certain judges, legislators, scholars, and organizations. As a legal matter, however, it is the criticism of investor-State dispute settl [...]

Japan’s Entry into the TPP Negotiations Raises the Economic Stakes

“America’s important security alliances across the Pacific need an economic underpinning.”  Ambassador Robert Zoellick, May 1, 2013

To use one of the Obama Administration’s favorite terms, the entry of Japan in April 2013 into the three-year-old Trans-Pacific Partnership (TPP) negotiations later this year is a “game-changer.”  Prior to Japan’s commitment as the 12th TPP partner, U.S. participation in the TPP negotiations could be seen as an important piece of the nation’s “pivot” toward Asia, part of a new emphasis on economic, political and security relationships in Asia and an element of various initiatives to counterbalance China’s growing, not always benign, influ [...]

Brewing Storm over ISDR Clouds: Trans-Pacific Partnership Talks – Part II

As described in Part 1 of this post, the mounting debate about investor-state dispute resolution (ISDR) has crescendoed in the current Trans-Pacific Partnership (TPP) negotiations. There are at least two “schools” of concern with ISDR, both of them voiced inside and outside the TPP context.

Threats to Public Interest Policy

For a growing array of domestic policymakers, civil society organizations and people impacted by ISDR decisions, ISDR is viewed as a threat to vast swaths of public interest policy achieved through decades of struggle, and to the prospect of further advances. Either by winning an investor-state attack and collecting millions in compensation, or by preemptively chillin [...]

Brewing Storm over ISDR Clouds: Trans-Pacific Partnership Talks – Part I

Trans-Pacific Partnership (TPP) negotiations have become the territory where a brewing perfect storm over investor-state dispute resolution (ISDR) is making landfall. The June 2012 leak of the draft TPP Investment Chapter text added energy, but much more is fueling this tempest.

In general the ISDR system is coming under increased scrutiny. Public and policymaker concerns in numerous countries have been building alongside awareness of the regime and its implications as large ISDR awards in challenges against common public interest policies increase.

U.S. government insistence that the TPP include an expansive ISDR system is having a boomerang effect. And I am not mainly referring to Austral [...]

Trans-Pacific Partnership Negotiations: Waiting for U.S. Proposals

The seventh round of TPP negotiations will take place in Vietnam the week of June 20 but caution on the part of U.S. negotiators makes it highly unlikely that after fifteen months of ongoing negotiations any of the major issues will be resolved or even fully opened to discussion. In particular, the United States Trade Representative (USTR) is likely to avoid presenting definitive U.S. views on labor, environment, state owned enterprises (SOEs) and intellectual property. (Limited proposals on both environmental issues and IP have been offered by the United States in the past, but apparently lacked detail, and do not address the data exclusivity, extended patent term and patent linkage issue [...]

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