Evolving Antipodean, Asian and European Ambivalence Around ISDS Arbitration:A Compromise Way Forward?

I will present on the above topic at the monthly meeting of the International Law Research group (kokusaiho kenkyukai) on Saturday 26 September 2026 1.30-3pm at the University of Tokyo Faculty of Law (Building No 3) – the day before I return to the University of Sydney to work a year before my next six-month stint annually in Tokyo on tenured cross-appointment. The paper will be published this year in a special issue of the Griffith Law Review, freely available in Open Access, with the [slighted edited] Abstract below and and summary powerpoints available here:

ISDS_Investment_Court_CompromiseDownload

Abstract: This article outlines Australia’s renewed stance against investor-state dispute settlement (ISDS) arbitration in international investment agreements (IIAs) (Part 2). This intensifies the Labor Government’s anti-ISDS position over 2011-13, mirrored by New Zealand’s Labour Government over 2017-2023. Concerns have also been raised in Europe over the last 10-15 years about ISDS procedures and IIAs, as developed economies experienced inbound ISDS claims. From 2015, the European Union (EU) promoted an investment court alternative. Part 3 examines experiences in significant economies in Asia, with net or large outbound stocks of foreign direct investment (FDI) that typically favour the stronger IIA provisions, and net FDI-importing economies. Most remain open to agreeing to ISDS, while agreeing to an investment court in IIAs with the EU. Part 4 details antipodean negotiations with the EU, and two mega-regional treaties involving also Southeast Asia [with RCEP including Japan] where ISDS is subject to ongoing work programs. Part 5 concludes that Australia and New Zealand have an opportunity to join with some Asian states [including potentially Japan] in seriously considering an investment court alternative to traditional ISDS, or at least key features thereof, as a more sustainable compromise way forward to concluding balanced trade and investment agreements regionally and even multilaterally.

Keywords: international investment law, arbitration, ISDS, Australasia, Asia, European Union

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.