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    The Investment Chapter and ISDS in the TPP: Lessons from Southeast Asia

    Nottage, Luke | April 2017
    Abstract
    The investment chapter and investor-state dispute settlement provisions in the Trans-Pacific Partnership attracted significant media and public attention. This paper shows that ISDS-backed investment treaty commitments, aimed to liberalising and protecting FDI, are already widespread across Southeast Asian countries. However, these countries have been subjected to comparatively few ISDS claims and (very recently) two adverse treaty-based arbitration awards. Meanwhile, investors from Malaysia and Singapore have initiated claims. This backdrop partly explains not only why those two states and the other existing TPP signatories (Vietnam and Brunei) were willing to agree to ISDS-backed commitments in that FTA. It also makes it quite likely that ISDS provisions are not likely to become deal breakers for countries such as Thailand, the Philippines and even Indonesia in future trade agreements. This paper also demonstrates that the TPP's investment chapter is already quite similar to the substantive and procedural (ISDS) investment treaty commitments entered into by Southeast Asian states, especially under FTAs over the last decade or so, including four ASEAN+ FTAs. Like recent treaties agreed by other Asia-Pacific states, these draw significantly on contemporary US-style treaty drafting containing features more protective of host state interests. This provided the platform for agreeing on the TPP. Its ratification also offers an opportunity to displace older more pro-investor standalone bilateral investment treaties (and revisit such BITs more broadly, like Indonesia since 2014). Nonetheless, this paper raises the question whether and how a further recalibration in favour of host states might occur, along the lines recently proposed by the EU with the US, and agreed already in FTAs with Canada and Vietnam.
    Citation
    Nottage, Luke. 2017. The Investment Chapter and ISDS in the TPP: Lessons from Southeast Asia. © ISEAS Yusof Ishak Institute. http://hdl.handle.net/11540/7019.
    Keywords
    Resources evaluation
    Input output analysis
    Import volume
    Export volume
    Export Development
    Economic agreements
    International market
    Import policy
    Export policy
    Project Evaluation & Review Technique
    Operations Evaluation
    Evaluation
    World Trade
    Trade Volume
    Trade Promotion
    Trade Flows
    Trade Development
    Patterns Of Trade
    Participatory monitoring and evaluation
    Participative management
    Foreign trade routes
    Trade routes
    Foreign trade and employment
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    Citable URI
    http://hdl.handle.net/11540/7019
    Metadata
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    ISEAS_EWP_2017-02.pdf (763.7Kb)
    Author
    Nottage, Luke
    Theme
    Evaluation
    Trade
     
    Copyright 2016-2021 Asian Development Bank Institute, except as explicitly marked otherwise
    Copyright 2016-2021 Asian Development Bank Institute, except as explicitly marked otherwise