Restoring Balance in Investor State Dispute Settlement: Addressing Treaty Shopping and Indirect Expropriation Claims and Consistent Approaches to Decision-Making
Bibliographic record
Abstract
This article explorestwo of the apparent concerns of Western liberal democraciesregarding investor state dispute settlement provisions in bilateral and multilateral investment treaties and trade agreements. Both of these concerns were highlighted in the arbitration in wherein Philip Morris Asia challenged Australia’s Tobacco Plain Packaging Act 2011 as amounting to, amongst other things, indirect expropriation or a breach of the fair and equitable treatment (FET) standard. This challenge came about as a result of Philip Morris Asia acquiring all of the shares in Philip Morris Australia, so that a claim could be brought under the 1993 bilateral investment treaty between Hong Kong and Australia. The case, therefore, highlighted the possibility of treaty shopping by an investor to secure the protection of an investment treaty, as well as the possibility of challenging state regulation on the basis of indirect expropriation or breach of the FET standard. This article will explore recent responses to these two issues, both through analysing the response of the arbitral tribunal in the Philip Morris case and other cases to the treaty shopping issue; and by analysing responses in more recent treaties to protecting state regulatory power, including in the Canada-EU Comprehensive Economic and Trade Agreement (CETA) and in the Trans-Atlantic Trade and Investment Partnership (TTIP) currently being negotiated between the US and the EU. Reference is also made to the Trans Pacific Partnership (TPP) as, while the US withdrew from the TPP on 21 January 2017, thus bringing to an end the prospect of the 12-nation trade deal that had originally been envisaged,1 its negotiated provisionssought to address concernsraised in this article. Further, the TPP is now being pursued by the remaining 11 nations2 in the form of a Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), with a view to maintaining the balance seen to be inherent in the TPP and protecting state rightsto regulate.3 Finally, the article will review some of the arguments for and against an investment court structure for investment treaty arbitrations, including the possibility of a more consistent and certain approach to decision-making regarding the issues raised in this article.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.090 | 0.090 |
| Meta-epidemiology (narrow) | 0.001 | 0.001 |
| Meta-epidemiology (broad) | 0.001 | 0.002 |
| Bibliometrics | 0.004 | 0.003 |
| Science and technology studies | 0.015 | 0.066 |
| Scholarly communication | 0.038 | 0.028 |
| Open science | 0.007 | 0.024 |
| Research integrity | 0.023 | 0.023 |
| Insufficient payload (model declined to judge) | 0.010 | 0.001 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".