Investor-State Arbitration: The Roadmap from the Multilateral Agreement on Investment to the Trans-Pacific Partnership Agreement

Federal Law Review (2012) 40 (2), 207-226

20 Pages Posted: 26 Sep 2012 Last revised: 2 Nov 2012

See all articles by Razeen Sappideen

Razeen Sappideen

Western Sydney University, School of Law

Lingling He

University of Southern Queensland - School of Law and Justice

Date Written: September 25, 2012

Abstract

Capital exporting countries have attempted to protect the overseas investments of their multinational corporations (MNC) against host nation governments expropriating these investments, limiting the right to repatriate profits, or subjecting the withdrawal of their investments to heavy penalties. The aborted Multilateral Agreement on Investment (MAI) of the mid-1990s was an attempt at transferring these concerns to a settled legal framework between nations. Some limited expression of this is found in the provisions of the World Trade Organisation (WTO) Dispute Settlement Understanding, while more substantive assertions are found in the investor-state dispute settlement (ISDS) provisions of bilateral trade and investment agreements entered into between developed and developing economies. However, recent legal challenges and associated public relations campaigns by MNC directed at Public Law and Health measures have caused governments to reassess the situation. A classic example of this has been the challenge by tobacco companies against the plain cigarette packaging legislation introduced by the Canadian and Australian governments. The Australian Government's response to this through its statement of position in respect of future bilateral agreements and its Tobacco Plain Packaging Act 2011 (Cth)1 is equally path breaking. This article examines the dramatic turnaround in perspective of States in respect of Investor-State arbitration, and its impact on the Trans-Pacific Partnership Agreement (TPP) currently being negotiated.

Suggested Citation

Sappideen, Razeen and He, Lingling, Investor-State Arbitration: The Roadmap from the Multilateral Agreement on Investment to the Trans-Pacific Partnership Agreement (September 25, 2012). Federal Law Review (2012) 40 (2), 207-226, Available at SSRN: https://ssrn.com/abstract=2152168 or http://dx.doi.org/10.2139/ssrn.2152168

Razeen Sappideen (Contact Author)

Western Sydney University, School of Law ( email )

Locked Bag 1797
Penrith, NSW 2751
Australia

Lingling He

University of Southern Queensland - School of Law and Justice ( email )

West Street
Toowoomba, Queensland 4350
Australia

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