Professor Chester Brown
1.30 in Kirraala
Australia is a party to 21 bilateral investment treaties (“BITs”) and 10 free trade agreements (“FTAs”), each of which have investment chapters. These are agreements for the “promotion and protection” of foreign investments, and impose obligations on States with regard to the treatment of foreign investors and their investments, such as the obligation to accord “fair and equitable treatment”, to provide “full protection and security”, and not to expropriate foreign investments without payment of compensation. Most of these treaties also include a provision which allows foreign investors to commence dispute settlement proceedings – usually by international arbitration – in the event of a dispute between the investor and the host State. These “ISDS” provisions have been the subject of intense debate recently, with two mega-regional international economic agreements – the Transatlantic Trade and Investment Partnership (“TTIP”) and the Trans-Pacific Partnership (“TPP”) – on the cusp of completion.
This presentation will explore the history and operation of ISDS provisions as well as the substantive protections that are usually contained in BITs and FTAs, and will examine the types of State conduct that may be found to violate the obligations in such treaties. It will also examine the prospects of mediation being used to resolve investor-State disputes.