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

Article


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.
Article Title

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

ERA Journal ID33318
Article CategoryArticle
AuthorsSappideen, Razeen (Author) and He, Ling Ling (Author)
Journal TitleFederal Law Review
Journal Citation40 (2), pp. 207-227
Number of Pages21
Year2012
Place of PublicationCanberra, Australia
ISSN0067-205X
1444-6928
Web Address (URL)http://search.informit.com.au/documentSummary;dn=804151382329486;res=IELHSS
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.

KeywordsMultilateral Agreement on Investment; MAI; taxation law; profit repatriation; plain packaging; cigarette advertising
ANZSRC Field of Research 2020480308. International trade and investment law
440808. International relations
480106. Taxation law
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Byline AffiliationsUniversity of Western Sydney
Institution of OriginUniversity of Southern Queensland
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