The (federal government’s) Australian Research Council has provided $260,000 to support a project led by Prof Luke Nottage, Prof Leon Trakman (lead-CI, former Dean of Law at UNSW), A/Prof Jurgen Kurtz (Melbourne Law School) and Dr Shiro Armstrong (ANU Crawford School of Public Policy, co-editor of the East Asia Forum blog).
The abstract for this project is as follows:
“This project will evaluate the economic and legal risks associated with the Australian Government’s current policy on investor-state dispute settlement through multidisciplinary research, namely econometric modeling, empirical research through stakeholder surveys and interviews, as well as critical analysis of case law, treaties and regulatory approaches. The aim of this project is to identify optimal methods of investor-state dispute prevention, avoidance and resolution that efficiently cater to inbound and outbound investors as well as Australia as a whole. The goal is to promote a positive climate for investment inflows and outflows, while maintaining Australia’s ability to take sovereign decisions on matters of public policy.”
The following is a list of publications related to the project (published as at 1 April 2015, or forthcoming).
Co-authored publications
2014
- Shiro Armstrong, Jürgen Kurtz, Luke Nottage and Leon Trakman, “The Fundamental Importance of Foreign Direct Investment to Australia in the 21st Century: Reforming Treaty and Dispute Resolution Practice”, Sydney Law School Research Paper No. 13/90 (2013) http://ssrn.com/abstract=2362122
— see also The ACICA News (December 2014): http://acica.org.au/assets/media/News/ACICA-Review/ACICA-Review-December-2014.pdf - Jürgen Kurtz and Luke Nottage, “Investment Treaty Arbitration ‘Down Under’: Policy and Politics in Australia”, 30 ICSID Review (2015) Download file
Shiro Armstrong
2014
- ‘Are Free Trade Agreements Making Swiss Cheese of Australia’s Foreign Investment Regime?’, East Asia Bureau of Economic Research, Working Paper 92, November 2014
- ‘Japan’s Foreign Economic Policy Strategies and Economic Performance’, Center on Japanese Economy and Business Working Papers, No. 340, 2014 (with Peter Drysdale)
- ‘Economic Cooperation in the Asia-Pacific and the Global Trading System’, Asia & the Pacific Policy Studies, 1(3), pp 513–521, September 2014
Jürgen Kurtz
2015
- “The WTO and International Investment Law: Converging Systems” (Cambridge University Press: forthcoming)
Luke Nottage
2015
- Luke Nottage and Chester Brown, “Australia”, in George Bermann (ed) Recognition and Enforcement of Foreign Arbitral Awards: The Application of the New York Convention by National Courts (Berlin: Springer) forthcoming
— Based on a report for the 19th International Congress of Comparative Law, Vienna, 20-27 July 2014; Sydney Law School Research Paper No. 13/70, http://ssrn.com/abstract=2340806 - “Australia” (with James Morrison) in Simon Greenberg, Christopher Kee and Romesh Weeramantry, International Commercial Arbitration: An Asia-Pacific Perspective (Alphen aan den Rijn: Kluwer) forthcoming
— Longer version in Sydney Law School Research Paper No. 14/95 (2014), http://ssrn.com/abstract=2514124 - “Asian Investment and the Growth of Regional Investment Agreements” (with Vivienne Bath) in Christoph Antons (ed) Routledge Handbook of Asian Law (London: Routledge) forthcoming
- Luke Nottage and Simon Butt, “Recent International Commercial Arbitration and Investor-State Arbitration Developments Impacting on Australia’s Investments in the Resources Sector” in Philip Evans and Gabriel Moens (eds) Arbitration and Dispute Resolution in the Resources Sector: An Australian Perspective (Berlin: Springer) forthcoming
— Also Sydney Law School Research Paper No. 13/71 (2013), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2340810 - “The ‘Anti-ISDS Bill’ Before the Senate: What Future for Investor-State Arbitration in Australia?” XVIII International Trade and Business Law Review 245-93
— Longer version as Sydney Law School Research Paper No. 14/76, http://ssrn.com/abstract=2483610 - “Do Many of Australia’s Bilateral Treaties Really Not Provide Full Advance Consent to Investor-State Arbitration? Analysis and Regional Implications of Planet Mining v Indonesia” 1 (2015) Transnational Dispute Management www.transnational-dispute-management.com/article.asp?key=2177
— also Sydney Law School Research Paper No. 14/39, http://ssrn.com/abstract=2424987
2014
- “The ASEAN Comprehensive Investment Agreement and ‘ASEAN Plus’ – The Australia-New Zealand Free Trade Area (AANZFTA) and the PRC–ASEAN Investment Agreement” (with Vivienne Bath) in Marc Bungenberg, Joern Griebel, Stephan Hobe & August Reinisch (eds) International Investment Law (Baden-Baden et al: Nomos / Beck / Hart) forthcoming
— Also Sydney Law School Research Paper No. 13/69 (2013), http://ssrn.com/abstract=2331714 - “In/formalization and Glocalization of International Commercial Arbitration and Investment Treaty Arbitration in Asia” in Joachim Zekoll, Moritz Baelz and Iwo Amelung (eds) Formalisation and Flexibilisation in Dispute Resolution (Leiden: Martinus Nijhoff / Brill) 211-49
- “Asia-Pacific Regional Architecture and Consumer Product Safety Regulation for a Post-FTA Era” in Meredith Kolsky Lewis and Susy Frankel (eds) Trade Agreements at the Crossroads (London: Routledge) 114-38
— Longer version as Sydney Law School Research Paper No. 09/125 (updated 2011), http://ssrn.com/abstract=1509810 - “Investor-State Arbitration: Not in the Australia-Japan Free Trade Agreement, and Not Ever for Australia?” 38 Journal of Japanese Law 37-52
- “Assessing Treaty-Based Investor-State Dispute Settlement: Abandon, Retain or Reform?” (with Christian Campbell and Sophie Nappert) Transnational Dispute Management 1 (2014) http://www.transnational-dispute-management.com/article.asp?key=2024
— Earlier version as Sydney Law School Research Paper No. 13/40 (2013), http://ssrn.com/abstract=2280182 - “The Anti-ISDS Bill Before the Australian Parliament” The CIArb Australia News (September 2014) 21-25, https://www.ciarb.net.au/wp-content/uploads/newsletters/CIArb-News-Sep14.pdf
— with some ideas restated at: http://kluwerarbitrationblog.com/blog/2014/08/27/the-anti-isds-bill-before-the-australian-senate
Leon Trakman
2015
- “Locating Australia on the Pacific Rim: Trade, Investment and the Asian Century” (with Sharma, K) (2015) Transnational Dispute Management 1: http://www.transnational-dispute-management.com/article.asp?key=2178
- Trakman L, “Instituting Investment Claims under the Trans-Pacific Partnership Agreement” (Chapter 12) in China and International Investment Law (ed) Wenhua Shan, 2015 372-407: http://www.brill.com/products/book/china-and-international-investment-law
2014
- “BITs and Pieces: Regional Developments in Investor-State Dispute Settlement” (with Kunal Sharma) APEC Currents (December 2014): http://bit.ly/1sVSYst
- “Instituting Investment Claims under the Trans-Pacific Partnership Agreement” (Chapter 12) in China and International Investment Law (ed) Wenhua Shan, 2014 (http://www.brill.com/products/book/china-and-international-investment-law): A soft copy of the penultimate chapter is available here
- “The Binding Force of Agreements to Negotiation in Good Faith”, 43(3) Cambridge Law Journal 598-628 (2014) (with Kunal Sharma): http://journals.cambridge.org/action/displayAbstract?fromPage=online&aid=9447635&fulltextType=RA&fileId=S000819731400083X
- “Indonesia’s Termination of the Netherlands–Indonesia BIT: Broader Implications in the Asia-Pacific?” (with Kunal Sharma): http://kluwerarbitrationblog.com/blog/2014/08/21/indonesias-termination-of-the-netherlands-indonesia-bit-broader-implications-in-the-asia-pacific/
- “The Status of Investor – State Arbitration: Resolving Investment Disputes under the Transpacific Partnership Agreement” 48 Journal of World Trade 1-29 (2014):
http://www.kluwerlawonline.com/toc.php?area=Journals&mode=bypub&level=5&values=Journals~~Journal+of+World+Trade~Volume+48+%282014%29 - “Resolving Investor-State Disputes: Australia’s Dilemma and Choices” (in Nye Perram, International Commercial Law and Arbitration: Perspectives (editor: Justice Nye Perram) Chapter 1 (Ross Parsons Centre of Commercial, Corporate and Taxation Law, 2014): available here
- “Deciding Investor States Disputes: Australia’s Evolving Position”, 15 Journal of World Investment and Trade 152-192 (2014): here and at
http://booksandjournals.brillonline.com/content/journals/10.1163/22129000-01502005 - “China and Direct Foreign Investment: Does Distance Lend Enchantment to the View?” in 1(2) Chinese Journal of Comparative Law (2013): http://cjcl.oxfordjournals.org/content/early/2013/09/28/cjcl.cxt015
- “Investor-State Arbitration: Evaluating Australia’s Evolving Position”, The Journal of World Investment & Trade 2014 15(1-2):152-192: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2401504
- “Investment Dispute Resolution under the Proposed Transpacific Partnership Agreement: Prelude to a Slippery Slope?” (2014) 48 Journal of World Trade 1-29