After Australia’s general election held on 18 May 2019, the prospects for investor-state dispute settlement (ISDS) and therefore investment chapters in free trade agreements (FTAs) remain unclear not only for Australia but also the wider Asia-Pacific region. This posting provides some backdrop and reiterates a proposal for a bipartisan (and bi-national) approach by Australia (especially with New Zealand) to more actively promote a “permanent investment court” (or at least some of its core features) as a compromise alternative to conventional ISDS, for its future treaties as well as in reviewing older ones. This should be not just in pending FTA negotiations with the European Union, which now already insists on such a court for resolving investor-state disputes (aiming also to develop a multilateral investment court), but also in (re)negotiations with other Asia-Pacific states. A version of this posting is with the East Asia Forum blog too.
This proposal will be tabled and hopefully discussed at the upcoming seminar at the University of Hong Kong, on 15 July, as part of a joint project over 2019 with USydney on “New Frontiers in International Arbitration for the Asia-Pacific Region“.
Continue reading “New Frontiers in International Arbitration for the Asia-Pacific Region (3): What Future for ISDS?”
Written by: Dr Vivien Chen (Monash University) & Preeti Sze Hui Lo (USydney law student and CAPLUS intern)
[Introduction by Luke Nottage: A Nikkei article of 3 April 2019 highlights how activist investors are increasingly calling for shakeups of corporate boards across Asia, especially in Japan since 2014, but also China, Singapore, South Korea and Hong Kong. It also reports how the Asian Corporate Governance Association has downgraded Japan from 4th ranking in 2016 to 7th ranking in 2018, and upgraded Malaysia from 7th to 4th. Is that switch justified?
Perhaps Japan is being judged too harshly for the recent Toshiba and Nissan (Carlos Ghosn) scandals, or the 2012 Olympus saga, despite the country introducing new Stewardship and Corporate Governance Codes from 2015. Perhaps too much weighting is given in rankings or assessments for the numbers or proportions of independent non-executive directors on boards. This is despite mixed evidence about whether corporate performance has generally improved or other expected benefits have accrued as independent director requirements have become an increasingly popular reform across other Asian economies, as reviewed in the chapters on Australia and Japan in my 2017 co-edited book.
And what about Malaysia? Even the largest 100 listed companies, based on their formal disclosures, don’t score too well on the ADB-supported ASEAN Corporate Governance Scorecards – although they seem to be improving. Around 40 percent of all listed firms remain government-linked companies (GLCs), in sharp contrast to Japan (as illustrated in Figure 4 of this 2018 OECD report on Asian stock markets), but government ownership can be problematic especially when the same political party (like UMNO until last year) remains in power over extended periods. Some good news from a 2018 book by UMalaya Prof Edmund Gomez et al is that since the Asian Financial Crisis in 1997 there are far fewer appointments of (ex-)UMNO politicians to the boards of GLCs and the various government-linked investment companies or sovereign wealth funds that invest in them and other listed companies. Directors and CEOs are increasingly professionalised. The bad news is that many may still rely directly or indirectly on the Minister of Finance for appointments, and so might be expected (like good butlers!) to anticipate the Minister’s preferences. The risk of conflicted interests grows if the Minister of Finance is also the Prime Minister, as was the case for Dr Mahathir Mohamad after the AFC (1998-2003) and especially Najib Razak (2008/9-2018) until UMNO remarkably lost the general election last year. Part of the reason for that election loss was the collapse of 1MDB (1Malaysia Development Berhad), a sovereign wealth fund established by Najib when he became Prime Minister in 2009.
One guest blog posting below, by this semester’s CAPLUS student intern Preeti Lo, highlights some of the warning signs that all was not well with 1MDB, linking to her PDF timeline of key events in that scandal drawing partly on a book by Wall Street Journal authors (“The Billion Dollar Whale“, 2018). The other posting, by Monash University’s Dr Vivien Chen, outlines her forthcoming article on challenges afflicting corporate governance in Malaysia more broadly and especially when it comes to enforcing directors’ duties. They provide useful context to my ongoing research, supported by the Sydney Southeast Asia Centre, extending to Malaysia (and Thailand and Cambodia) a previous analysis of the proliferation and realities of independent directors in Asia.]
Continue reading “Guest blog: Corporate (Mis)Governance in Malaysia (& Japan)”