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Too Much Information or When Information Relating to Arbitration Obscures rather than Clarifies the Landscape

The following thoughts are written aware of the fact that a blog is personal and informational and not a substitute for an academic article. In this spirit the thoughts expressed here are, while fundamental in many respects, also preliminary and tentative in some others.

The quest for more transparency in international (commercial and investment) arbitration captures the attention of novices and veteran insiders and outsiders of this area of dispute resolution. In this respect also the calls for publication of arbitral awards is not entirely new (Julian Lew, Klaus-Peter Berger and Martin Hunter have written on the issue since the late 1970s). The debate about transparency does not automatic [...]

U.S. Free Trade Agreements and Bilateral Investment Treaties: How Does Ratification Differ?

A lot has been written recently about the importance of Trade Promotion Authority (TPA) in the context of the ongoing Trans-Pacific Partnership (TPP) and Transatlantic Trade and Investment Partnership (TTIP) negotiations. TPA is the authority Congress grants to the President to enter into certain reciprocal trade agreements that Congress can approve or disapprove but cannot amend or filibuster (i.e., passing an agreement would require solely an “up or down” vote by Congress). Many observers believe that TPA is a necessary piece to the successful conclusion of either agreement—it will be difficult for negotiating parties to put their best offers forward without some assurance that Congr [...]

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 [...]

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