Australia’s Anti-ISDS Bill 2.0: A Bad Idea in 2014 and A Worse Idea Now

With a worrisome sense of déjà vu from 2014, I wrote on 26 October 2026 to Australia’s Minister for Trade the Hon Don Farrell and the Shadow Minister the Hon Matthew Canavan, opposing The Trade and Investment Agreements (Consultation) Bill 2026[1] clauses 16(2)(a) and 23(c) that simply state that a (trade) Minister must not sign a proposed free trade agreement or bilateral investment treaty if it “includes provision for investor-state dispute settlement” (ISDS). I expressed the hope that the Australian government would retract these provisions in its Bill, or better still would support the Senate referring this controversial Bill to its Foreign Affairs and Trade Committee for proper public consultation. 

Since 2010 I have made ten substantial Submissions to Parliament and the Government regarding investment treaty ratifications and reviews, often called to give oral evidence to Committees and/or being cited in their reports (reproduced in Appendix A in the letter and below). Given emergent public concern, somewhat curiously since it is only a procedure rather than a substantive commitment typically provided nowadays through treaties, I have addressed considerable attention to ISDS arbitration in these Submissions (and related publications).

The text of my Letter is available on request (email: [email protected]) and a version has been submitted for publication in the ACICA Review.

Appendix A:

  1. Submission to Parliament (JSCOT) on ratifying the Second Protocol to Amend AANZFTA, https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Treaties/AANZFTASecondProtocol/Submissions (4 January 2024); invited to give evidence at hearings on 25 March 2024 – https://japaneselaw.sydney.edu.au/2024/05/australias-anti-isds-approach-again-aanzfta-protocol-to-be-ratified/
  2. DFAT Review of Australia’s Bilateral Investment Treaties, Submission dated 14 September 2020, https://www.dfat.gov.au/trade-and-investment/discussion-paper-review-australias-bilateral-investment-treaties
  3. Australian Parliament, Submissions to two JSCOT treaty ratification inquiries, both quoted in respective JSCOT Reports recommending ratification:
    1. HK and Indonesia investment treaties (including evidence given 26 August 2019) via eg https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Treaties/A-HKFTA;
    1. Mauritius “UN ISDS Convention” on transparency, submission dated 27 August 2019 via https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Treaties/ISDSUNConvention .
  4. Australian Parliament, Submission to second JSCOT inquiry into Peru-Australia FTA, 2 November 2018, quoted (at 4.18 and 4.26-28) of its Report No 138 
  5. Australian Parliament, Submissions to Senate and JSCOT inquiries into ratifying the CPTPP, April 2018, including oral evidence given to at JSCOT hearings on 15 June, https://japaneselaw.sydney.edu.au/2018/04/the-tpp-is-back-submission-to-australian-parliamentary-inquiries/ (Answers to Questions on Notice later incorporated into: Luke Nottage and Ana Ubilava “Costs, Outcomes and Transparency in ISDS Arbitrations: Evidence for an Investment Treaty Parliamentary Inquiry” 21(4) Intl Arb L Rev 111-7 (2018) https://ssrn.com/abstract=3227401)
  6. Australian Parliament, Submissions to the Senate Committee Inquiry into ratifying the TPP: No 3 (September 2016)http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Foreign_Affairs_Defence_and_Trade/TPP/Submissions
  7. Australian Parliament, Senate and JSCOT inquiries into the China-Australia Free Trade Agreement (August 2015) Elaborating on: https://japaneselaw.sydney.edu.au/2015/06/compromised-isds-backed-investment-commitments-in-the-china-australia-fta/
  8. Australian Senate, Inquiry into the Commonwealth’s Treaty Making Process athttp://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Foreign_Affairs_Defence_and_Trade/Treaty-making_process: submission dated 25 February 2015, transcript of Evidence given at Committee hearings on 5 May, via https://japaneselaw.sydney.edu.au/2015/03/submission-to-the-senate-inquiry-into-the-commonwealths-treaty-making-process/, cited approvingly in the majority report of 25 June 2015: https://japaneselaw.sydney.edu.au/2015/06/senates-report-into-australias-treaty-making-process-and-isds-model/
  9. Australian Senate, Inquiry into The Trade and Foreign Investment (Protecting the Public Interest) Bill 2014, submission dated 2 April 2014, with a version at https://japaneselaw.sydney.edu.au/2014/09/the-anti-isds-bill-before-the-australian-parliament/ Evidence given at the Committee hearings on 6 August 2014, from 2.08-3.10 in the video-recording available at http://parlview.aph.gov.au/mediaPlayer.php?videoID=233409&operation_mode=parlview; Incorporated into a paper at http://ssrn.com/abstract=2483610
  10. Productivity Commission, “Review of Bilateral and Regional Trade Agreements”, Supplementary Submission, 12 August 2010, at http://www.pc.gov.au/projects/study/trade-agreements

[1] Available at https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=s1498. For helpful discussion focused more on other features of this Bill, consider the Trade Policy Decoded podcast discussion by Adelaide University Prof Peter Draper and Australian Centre for International Trade and Investment director Dr Prudence Gordon, “Episode 48: Does Australia Really Need a Statutory Advisory Group?” (5 October 2026) via https://www.aciti.org.au/tradepolicydecoded

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.