Consumer Protection and Free Trade [and Investment] Agreements

My public lecture on this topic, bringing together two research fields of contemporary public interest, was presented on 24 September 2014 as part of Sydney Law School’s Distinguished Speakers Program.
The session was kindly introduced by my colleague Prof Chester Brown, and ended with a commentary by NUS Asst Prof Jean Ho who kindly arrived straight from Sydney airport after her flight from Singapore.
The audio file of my presentation and Chester’s introduction are available via Sydney Law School’s podcast channel (specifically here), my Powerpoint slides are here (as a PDF), and a related short paper is here. Below is the abstract (with further hyperlinked references available here) and speaker/commentator bios.

“Consumer Protection and Free Trade Agreements”
Bilateral and regional trade and investment treaties are questioned by many on the political left and some on the (economic) right. The former think they go too far and inevitably undercut regulatory controls. The latter think they don’t go far enough and detract from multilateral agreements. This lecture seeks a middle way, proposing innovative treaty drafting to enhance free trade and investment while promoting higher shared regulatory safeguards.
Trade agreements should incorporate provisions allowing national regulators to share information about unsafe consumer goods – and indeed credit services – reinforced by national laws requiring suppliers to report incidents to the respective regulators.
Investment agreements (including FTA investment chapters) should retain Investor-State Dispute Settlement processes, not abandon ISDS altogether (as proposed by a recent Senate Bill), but with various provisions to re-balance private and public interests. In particular, the treaty partners should be allowed to agree that an investor’s claim against a host state’s regulatory measure (like Australia’s tobacco plain packaging legislation) does not violate the host state’s treaty commitments. This would not only suspend the investor’s claim, but also encourage the investor’s home state to “trade up” domestically to the higher regulatory standards already adopted by the host state.
About the speaker
Dr Luke Nottage
specialises in consumer law, contract law, arbitration and corporate governance, with a particular interest in the Asia-Pacific region. He is Associate Dean (International) and Professor of Comparative and Transnational Business Law at Sydney Law School. Luke’s many books include International Arbitration in Australia (Federation Press, 2010), Foreign Investment and Dispute Resolution Law and Practice in Asia (Routledge, 2011), Consumer Law and Policy in Australia and New Zealand (2013) and Asia-Pacific Disaster Management (2014). Luke serves on the ILA’s Committee for the International Protection of Consumers as well as the ACICA Arbitration Rules drafting committee, and is the Japan Representative for the Australasian Forum for International Arbitration council. He has also consulted for law firms world-wide, the EC, OECD, UNDP, ASEAN and the Japanese government, and is founding Director of Japanese Law Links Pty Ltd .
Current joint research projects include a study for SSEAC focused on ASEAN consumer law and policy, and an ARC Discovery Project on “The Fundamental Importance of Foreign Direct Investment to Australia in the 21st Century: Reforming Treaty and Dispute Resolution Practice” .
Commentary by: Assistant Professor Jean HO, Faculty of Law, National University of Singapore.
Jean co-lectures Arbitration of Investment Disputes with Professor M Sornarajah and is completing her doctoral thesis, “State Responsibility for Breaches of Investment Contracts”, at the University of Cambridge.

Author: Luke Nottage

Prof Luke Nottage (BCA, LLB, PhD VUW, LLM LLD Kyoto) is founding co-director of the Australian Network for Japanese Law (ANJeL), Associate Director (Japan) of the Centre for Asian and Pacific Law at the University of Sydney (CAPLUS), and Professor of Comparative and Transnational Business Law at Sydney Law School. He specialises in international dispute resolution, foreign investment law, contract and consumer (product safety) law.