24. Please provide a list of any articles or books that discuss this country’s investment treaties.
Mark Mangan, ‘Australia’s Investment Treaty Program and Investor-State Arbitration’ in Luke Nottage and Richard Garnett (eds), International Arbitration in Australia (The Federation Press Annandale 2010). Dr Chester Brown, Bilateral Investment Treaty Overview – Australia (Oxford University Press 2010). Available online at: www.investmentclaims.com/home_public.
Jonathan Kay Hoyle, International Investment Law in Australia: Terra incognita? Commentary on the Role of Bilateral and Multilateral Investment Treaties in Australia (unpublished manuscript, 2008). Available online at: www.acica.org.au/downloads/Jonathon%20Kay%20Hoyle.pdf.
Peter Turner, Mark Mangan and Alex Baykitch, ‘Investment Treaty Arbitration: An Australian Perspective’ (2007), 24 Journal of International Arbitration 103.
Luke Nottage, ‘Do Many of Australia’s Bilateral Treaties Really Not Provide Full Advance Consent to Investor-State Arbitration? Analysis of Planet Mining v Indonesia and Regional Implications’ (Transnational Dispute Management, 2015).
The author wishes to express his gratitude to Ananya Mitra for her invaluable assistance in the research and analysis of this chapter.
1 The answer ‘yes’ indicates that the treaty in question expressly grants an investor the right to bring a dispute under the treaty before local courts while ‘no’ means that the right to use local courts is not express in the treaty and therefore subject to local law.
2 The Australia–Chile BIT was terminated on the date of entry into force of the Australia–Chile FTA. Nevertheless, pursuant to article 12 of the Australia–Chile BIT and Annex 10-E of the Australia–Chile FTA, the BIT between the two countries continues to apply to any investment that was made before its termination with respect to any act, fact or situation that originated before its termination.
3 The parties to the Australia–China FTA agreed to review the Australia–China BIT within three years of the entry into force of the former: Australia–China FTA, article 9.9(2). Pending such review, the Australia–China BIT remains in force.
4 India terminated the Australia–India BIT on 23 March 2017. Nevertheless, pursuant to article 17(3), the Agreement continues to apply to investments made on or before 22 March 2017 for a period of 15 years from the date of termination.
5 The right is limited to circumstances in which both parties to the dispute agree to submit the dispute to the host country’s local courts: Australia–India BIT, article 12(2).
6 The Australia–Mexico BIT was terminated with effect from 30 December 2018. However, the parties agreed to transitional arrangements wherein the BIT continues to apply for a period of three years from termination to investments made before the entry into force of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership. A claim for arbitration under article 13 can only be made within three years of the date of termination. See: https://www.dfat.gov.au/sites/default/files/sl14-australia-mexico-ippa-termination.pdf.
7 Australia and Uruguay have agreed to terminate this BIT upon entry into force of the updated Agreement between Australia and Uruguay on the Promotion and Protection of Investments, which was signed on 5 April 2019. This updated Agreement has not yet entered into force. See: https://www.dfat.gov.au/trade/investment/australias-bilateral-investment-treaties.
8 The Australia–Vietnam BIT was terminated with effect from 14 January 2019. However, the parties agreed to transitional arrangements wherein the BIT continues to apply for a period of five years from termination (ie 14 January 2019) to investments made before the entry into force of the Trans-Pacific Partnership Agreement. A claim for arbitration under article 12 of the BIT can only be made within three years of the date of termination. See: https://www.dfat.gov.au/sites/default/files/australia-vietnam-termination-of-investment-promotion-and-protection-agreement.PDF.
9 The treaties listed below are all characterised by the Australian government as free trade agreements (including the Australia–New Zealand Closer Economic Relations Trade Agreement Investment Protocol (hereinafter referred to as the New Zealand FTA)) except for the Australia–Japan Economic Partnership Agreement (Australia–Japan EPA). In addition, Australia signed the Energy Charter Treaty on 17 December 1994, but ratification is still pending.
10 The answer ‘yes’ indicates that the treaty in question expressly grants an investor the right to bring a dispute under the treaty before local courts while ‘no’ means that the right to use local courts is not express in the treaty and, therefore, subject to local law.
11 Australia’s BITs with the ASEAN countries, Laos, the Philippines and Vietnam and the investment provisions of Australia’s FTAs with Singapore and Thailand remain in force and are not superseded or terminated by the ASEAN-ANZ FTA: Chapter 18, article 2. In the event of any inconsistency between the ASEAN–ANZ FTA and these existing investment agreements, the contracting parties have agreed to immediately consult with a view to finding a mutually satisfactory solution: ASEAN-ANZ FTA, Chapter 18, article 3. Australia and New Zealand have entered into a side agreement excluding the application of the investment chapter in the ASEAN-ANZ FTA as between their two countries.
12 While no MFN clause was agreed in the ASEAN–ANZ FTA, the contracting parties have undertaken to enter into discussions with a view to agreeing the application of MFN treatment to the treaty. Note that article 4 of Chapter 11 requires national treatment of qualifying investments.
13 While no FET clause was agreed in the Australia–China FTA, the contracting parties agreed to enter into negotiations with a view to agreeing the inclusion of a ‘Minimum Standard of Treatment’ in the treaty: Australia–China FTA, article 9.9(3)(b)(i). The Australia–China BIT includes FET protection, though without granting an investor a right of recourse to arbitration in the event that the standard is breached.
14 While there is no expropriation protection in the Australia–China FTA, the contracting parties agreed to enter into negotiations with a view to agreeing the inclusion of an expropriation clause in the treaty: Australia–China FTA, article 9.9(3)(b)(ii). The Australia–China BIT, however, includes protection against expropriation without compensation.
15 The CPTPP has yet to come into force for Brunei Darussalam, Chile, Malaysia and Peru. See: https://www.dfat.gov.au/trade/agreements/in-force/cptpp/Pages/comprehensive-and-progressive-agreement-for-trans-pacific-partnership.
16 The claimant may submit to arbitration a claim that the respondent has breached an investment authorisation or investment agreement: Australia–Korea FTA, article 11.16(1)(a).
17 The claimant may submit a claim to arbitration provided that six months have elapsed since the events giving rise to a claim. In addition, the claimant must submit a notice of intent to submit the claim to arbitration at least 90 days before the notice of arbitration: Australia–Korea FTA, articles 11.16(2) and (3).
18 See IA-CEPA, articles 14.23, 14.26(2)(a) and 14.26(2)(b).
19 In addition, the contracting parties shall consider, within three years of the entry into force of the agreement, whether to establish a bilateral appellate mechanism to review arbitral awards: Australia–Korea FTA, Annex 11-E.
20 The RCEP members are Australia, Brunei, Cambodia, China, Indonesia, Japan, Korea, Laos, Malaysia, Myanmar, New Zealand, Philippines, Singapore, Thailand and Vietnam. Once it comes into force the RCEP will be the world’s largest trade agreement.
21 Articles 904 and 907 of the Australia–Thailand FTA also require national treatment of qualifying investments.
22 Footnote 6 to article 917 of the Australia–Thailand FTA states that the consultations and negotiations between the investor and the state should in principle continue for three months.
23 The CPTPP, the AHKIA and the Singapore FTA provide that such suspension measures are not available for payments relating to ‘foreign direct investment’ as defined in each treaty.
24 The Australian Government Solicitor is a fully commercial and competitive law firm that provides legal services to the Australian government, and occasionally to governments of the States and Territories of Australia. It was originally established as an office within the government, headed by an individual Commonwealth Crown Solicitor, but was turned into a government business enterprise in 1999.
25 Legal Services Directions 2005 (Cth), Appendix 1, section 2.
26 The Solicitor-General is the second Law Officer of the Commonwealth of Australia (after the Attorney-General). He or she provides written and oral advice on matters of significance to the Australian government and appears as counsel in cases of constitutional significance, international cases and other cases of special government interest.
27 See Department of Foreign Affairs and Trade (2011) Gillard Government Trade Policy Statement: Trading our way to more jobs and prosperity. Note that the Australian government has traditionally rejected the need for investor-state arbitration provision in agreements between developed countries: eg, Australia–USA FTA.
28 Department of Foreign Affairs and Trade, ‘Frequently Asked Questions on Investor-State Dispute Settlement’ (accessed 22 January 2021). Visit www.dfat.gov.au.
29 See RCEP, article 10.8.
30 See, ‘Australia ratifies the United Nations Convention on Transparency in Treaty-based Investor State Arbitration’, 18 September 2020 http://unis.unvienna.org/unis/en/pressrels/2020/unisl304.html#:~:text=Australia%20is%20the%20sixth%20State,State%20Party%20to%20the%20Convention.&text=The%20Convention%20is%20open%20for,and%20regional%20economic%20integration%20organizations.
31 See, eg, Uganda Telecom Ltd v Hi-Tech Telecom Pty Ltd  FCA 131 where the Federal Court noted: ‘In the United States, the courts have generally regarded the public policy ground for non-enforcement as one to be sparingly applied… Other courts in the United States have held that there is a pro-enforcement bias informing the [New York] Convention… Whether or not, in 2004, there was a general discretion in the Court to refuse to enforce a foreign award which was brought to the Court for enforcement, the amendments effected by the 2010 Act make clear that no such discretion remains. Section 8(7)(b) preserves the public policy ground. However, it would be curious if that exception were the source of some general discretion to refuse to enforce a foreign award. Whilst the exception in s 8(7)(b) has to be given some room to operate, in my view, it should be narrowly interpreted consistently with the United States cases. The principles articulated in those cases sit more comfortably with the purposes of the Convention and the objects of the Act.’
32 See, eg, Raguz v Sullivan (2000) 50 NSWLR 236 and discussion of the same in Mark Mangan ‘With the Globalisation of Arbitral Disputes, is it Time for a New Convention?’ (2008) 11 International Arbitration Law Review 133.
33 See International Arbitration Amendment Act 2010 (Cth).
34 See the Multilateral Investment Guarantee Agency Act 1997 (Cth).
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