Abstract
Over the past decade, a number of countries in the Asia Pacific region have concluded a new generation of FTAs that liberalise trade in goods and services while also containing investment protection provisions. This paper provides an overview of the recent trends giving special attention to the impact of Investor State Dispute Settlement (ISDS) cases which has influenced the evolution of investment rule-making over the last decade. The paper asserts that investment disputes have influenced the refinement of the provisions of the new generation of investment agreements as well as the inclusion of a series of procedural and substantive innovations in these agreements.
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Notes
Asian Agricultural Products Ltd. v. Republic of Sri Lanka , ICSID Case No. ARB/87/3, 27 June 1990 (United Kingdom of Great Britain and Northern Ireland/Sri Lanka BIT). Note: unless otherwise indicated, all cases can be found on the ICSID webpage at http://www.worldbank.org/icsid/cases/cases.htm, or at http://ita.law.uvic.ca/chronological_list.htm.
United Nations Conference on Trade and Development (UNCTAD) (2008) Latest developments in Investor-State dispute Settlement , IIA MONITOR No. 1, 2008, International investment agreements, (Geneva: United Nations).
The sole known exception is a 2003 State-to-State dispute between Chile and Peru that was lodged in response to an investor-State claim filed by a Chilean firm, Zucchetto (Zucchetto S.A. and Zucchetto Peru S.A. v. Republic of Peru, ICSID Case No. ARB/03/4). The State-State procedure was discontinued, and the investor-State case was only recently decided. In other instances, States have set up claims commissions to deal with investor-to-State cases, such as the Iran-United States Claims Tribunal.
Supra note 5.
Supra note 5.
Pope & Talbot, Inc. v. The Government of Canada, UNCITRAL, Interim Award on Merits, 26 June 2000; Award on Merits, 10 April 2001; Award on Damages, 31 May 2002; Award on Costs, 26 November 2002.
S.D. Myers, Inc. v. Canada, UNCITRAL, First Partial Award, 13 November 2000.
One important exception to this trend is the Free Trade Agreement negotiated between Australia and the United States, which lacks investor-State dispute settlement provisions. This outcome can only be explained by the reciprocal trust of both OECD Parties in the efficiency and effectiveness in the application of the rule of law in Australia and the United States.
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*Ambassador of Costa Rica to the European Union, Belgium and Luxembourg. This paper was written on the basis of several research projects in which the author participated, before assuming the current position with the Costa Rican government, as consultant with UNCTAD. However, the opinions and views expressed in this paper do not represent the position of UNCTAD, nor the Government of Costa Rica and fully fall under responsibility of the author.
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Echandi, R. The new generation of international investment agreements: recent developments in the Asia–Pacific region. Asia Eur J 7, 127–144 (2009). https://doi.org/10.1007/s10308-008-0219-6
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DOI: https://doi.org/10.1007/s10308-008-0219-6