Monday, January 30, 2017

Voon & Sheargold: Australia, China, and the Co-Existence of Successive International Investment Agreements

Tania S.L. Voon (Univ. of Melbourne - Law) & Elizabeth Sheargold (Univ. of Melbourne - Law) have posted Australia, China, and the Co-Existence of Successive International Investment Agreements (in The China Australia Free Trade Agreement: A 21st Century Model, Colin Picker, Heng Wang & Weihuan Zhou eds., forthcoming). Here's the abstract:
The relationship between the bilateral investment treaty (‘BIT’) between Australia and China (1988) and the preferential trade agreement between those countries (‘ChAFTA’) (2015) provides an interesting case study of the co-existence of successive treaties under public international law. ChAFTA contains but a skeleton of an investment chapter, centred on national treatment and most-favoured nation obligations, yet with a range of substantive and procedural protections of policy space. The parties have agreed to negotiate a comprehensive investment chapter in the coming years. But the pre-existing BIT already contains standard investment protections including provisions on fair and equitable treatment and expropriation. Do those obligations continue to apply in the post-ChAFTA world? If so, are the regulatory protections in ChAFTA sufficient to protect the parties’ sovereign autonomy, despite their absence from the BIT itself? The answers to this puzzle lie at the intersection between the relevant general provisions of the Vienna Convention on the Law of Treaties and the ChAFTA provisions on its relationship to other treaties. A close reading of these different provisions suggests that the modern clarifications in ChAFTA are unlikely to affect the interpretation or application of the ‘old style’ Australia-China BIT, leaving the latter obligations in place without textual nuance, and Australia in particular open to an ISDS claim on the basis of those broad obligations.