find the latest legal job
Senior Associate - Litigation & Dispute Resolution
Category: Litigation and Dispute Resolution | Location: Melbourne CBD & Inner Suburbs Melbourne VIC
· Come work for a firm ranked in Lawyers Weekly Top 25 Attraction Firms
View details
Associate - Workplace Relations & Safety
Category: Industrial Relations and Employment Law | Location: Brisbane CBD & Inner Suburbs Brisbane QLD
· Employer of choice · Strong team culture
View details
Freelance Lawyers
Category: Banking and Finance Law | Location: All Perth WA
· Freelance opportunities through Vario from Pinsent Masons
View details
Freelance Lawyers
Category: Other | Location: All Adelaide SA
· • Qualified lawyer with a strong academic background
View details
Freelance Lawyers
Category: Other | Location: All Melbourne VIC
· • Qualified lawyer with a strong academic background
View details
Final TPP text under a magnifying glass

Final TPP text under a magnifying glass

Giaretta.Ben

As the wording of the TPP is revealed, the investor-state dispute settlement provisions deserve close scrutiny, Ben Giaretta writes.

The much-anticipated final text of the Trans-Pacific Partnership (TPP) was released last week. Lawyers should read the chapter outlining the Investor State Dispute Settlement (ISDS) provisions carefully.

Chapter 9 of the TPP relates to investments made by investors from one TPP country into another, and gives investors direct rights against the host country in certain situations. Such rights can be enforced via arbitration (commonly referred to as ISDS). When the text of the TPP was made available on 5 November, a number of features of Chapter 9 became apparent:

1. This is a sophisticated document

The TPP appears to be heavily influenced by the 2012 US Model BIT, which itself drew on investment arbitration case law; and the TPP goes further by adding other points derived from such case law. That can easily be seen by the large number of footnotes in the TPP text. Many of the footnotes relate to particular arguments that have been raised in various investment treaty cases. In places, Chapter 9 reads like a textbook on investment treaty law.

2. There is devil in the detail

As one might expect from a multilateral document covering a wide range of countries, there are a lot of individual points found in the country-specific annexes.  For example, the annexes show that the ISDS provisions do not apply to Australia-New Zealand trade relations. Any company considering bringing a claim under the TPP will therefore have to examine carefully the specific parts of the TPP that apply to its specific investment.

3. Australia has signed up… and opted out

It is noteworthy that while Australia has signed up for the ISDS provisions, it has also opted out in a number of respects, including in relation to urban land, the rights of Indigenous people, agribusiness, some public services, and other matters. (A tobacco opt-out is not on the list of specific opt-outs asserted by Australia in the annexes, but comes as a general opt-out that is available to all countries towards in Chapter 29 of the TPP.) This reflects the various changes of Australian government policy towards ISDS in recent years and the ongoing concerns about ISDS within Australia.

4. The TPP aims to make ISDS transparent

There is a detailed section in the TPP about transparency of any arbitration proceedings, even so far as making transcripts of hearings publicly available. This goes further than the majority of other investment treaties signed to date, and is clearly a response to some of the public criticism that there has been of ISDS.

Inevitably, there will be claims made under this Chapter, once the TPP is ratified; and no matter how sophisticated the drafting, it is likely that some new points, which cannot yet be anticipated, will come to light. We will have to see how this Chapter will operate in practice and how arbitral tribunals will interpret it.

Ben Giaretta is the head of international arbitration (Asia) at Ashurst.

Like this story? Read more:

QLS condemns actions of disgraced lawyer as ‘stain on the profession’

NSW proposes big justice reforms to target risk of reoffending

The legal budget breakdown 2017

Final TPP text under a magnifying glass
lawyersweekly logo
Promoted content
Recommended by Spike Native Network
more from lawyers weekly
Scales of Justice
Oct 19 2017
‘Ego status’ compelled ex-lawyer to defraud $2.97m, court told
Debarred lawyer John Gordon Bradfield told an NSW District Court that he was driven by “ego status...
Australian Lawyers Alliance (ALA), Queensland’s new industrial manslaughter legislation,
Oct 19 2017
ALA welcomes ‘tough’ Qld manslaughter laws
The Australian Lawyers Alliance (ALA) has welcomed Queensland’s new industrial manslaughter legisl...
Legal podcasts, tune in, microphone
Oct 19 2017
Legal podcasts you have to tune in to right now
The rise of the internet has hailed in a new dawn for storytelling. Here’s our top pick of podcast...
APPOINTMENTS
Allens managing partner Richard Spurio, image courtesy Allens' website
Jun 21 2017
Promo season at Allens
A group of lawyers at Allens have received promotions across its PNG and Australian offices. ...
May 11 2017
Partner exits for in-house role
A Victorian lawyer has left the partnership of a national firm to start a new gig with state governm...
Esteban Gomez
May 11 2017
National firm recruits ‘major asset’
A national law firm has announced it has appointed a new corporate partner who brings over 15 years'...
opinion
Nicole Rich
May 16 2017
Access to justice for young transgender Australians
Reform is looming for the process that young transgender Australians and their families must current...
Geoff Roberson
May 11 2017
The lighter side of the law: when law and comedy collide
On the face of it, there doesn’t seem to be much that is amusing about the law, writes Geoff Rober...
Help
May 10 2017
Advocate’s immunity – without fear or without favour but not both
On 29 March 2017, the High Court handed down its decision in David Kendirjian v Eugene Lepore & ...