One of the major developments in international law in the past century has been the rapid expansion of foreign investment law. Historically, investors had few effective legal mechanisms to protect their property in a foreign state. This changed in the 20th century with the proliferation of international investment treaties, guaranteeing foreign investors certain levels of protection. But something has changed in recent years. Increasingly, states are rejecting ISDS in what has come to be known as the 'backlash' against investment arbitration. Recently, Australia became the first developed country to announce that it would no longer include investor-state arbitration clauses in its future international investment treaties. This article briefly examines the debate surrounding the debate surrounding that policy decision.

"This book, the outgrowth of a conference organized by the editors at Harvard Law School on April 19, 2008, aims to uncover the drivers behind the backlash against the current international investment regime."--Library of Congress Online Calalog.

This thought-provoking book combines analysis of international commercial and investment treaty arbitration in order to examine how they have been framed by the twin tensions of ‘in/formalisation’ and ‘glocalisation’. Taking a comparative approach, the book focuses on Australia and Japan in their attempts to become regional hubs for international arbitration and dispute resolution services in the increasingly influential Asia-Pacific context as well as a global context.

Australia is the first developed state to openly indicate that it will no longer agree to the adoption of arbitration within its Bilateral and Regional Trade Agreements (BRTAs). One can debate whether the Australian government is unqualifiedly committed to this policy. There has been no indication that it will seek to withdraw from existing BITs and FTAs that provide for investor-state arbitration (ISA). What is now known is that the Australian government's Policy Statement is based less on unremitting faith in domestic courts to resolve investor-state disputes than in disdain for ISA in particular. That disdain stems from the draft research and final Reports of the Australian Productivity Commission (APC), a public commission in Australia charged by the federal treasurer with the specific task of making recommendations on future trade and trade policy statements. This chapter has several key objectives. The first is to challenge the APC's contention that ISA should be rejected on grounds that it is objectively inferior to other mechanisms of dispute resolution. The second is to evaluate the consequences of resorting to domestic courts, as distinct from ISA to resolve investment disputes. The chapter makes recommendations for changes to ISA that may reasonably accommodate some perceived deficiencies in it, that redress some of Australia's concerns, and that enable Australia to participate in investment treaties in which ISA is most likely to prevail. The chapter concludes by arguing against the Australian government's summary rejection of ISA because that rejection lacks an entirely justifiable basis.

This book provides a comprehensive Australian perspective on the resolution of resources disputes. In particular, it focuses on the use of arbitration, mediation and adjudication in the resources sector. It concentrates on arbitration as the preferred method of dispute resolution, including international commercial and investor-state arbitration. The book offers fascinating insights into the use of arbitration to investment disputes involving resources companies in the African OHADA countries, Australia and other countries. It offers an Australian perspective which will be useful to discerning arbitration scholars and dispute resolvers. In addition, the book provides useful information on how to draft arbitration clauses for resources sector contracts. This publication will be of interest to members of the academic research community and will also appeal to dispute resolution professionals and practitioners.

Regulatory Autonomy in International Economic Law provides the first extensive legal analysis of Australia’s trade and investment treaties in the context of their impact on national regulatory autonomy. This thought-provoking study offers compelling lessons for not only Australia but also countries around the globe in relation to pressing current problems, including the uncertain future of the World Trade Organization and widespread concerns about the legitimacy of investor–State dispute settlement.

As in some developing countries and more recently some developed countries worldwide and in the Asian region, Australia has faced significant internal opposition and public debate especially over treaty-based investor-state dispute settlement (ISDS). As outlined in Part II(1), concerns have re-emerged and escalated since the first-ever claim was brought against Australia regarding its tobacco plain packaging legislation, in 2011 by Philip Morris Asia under an old BIT with Hong Kong. However, Australia signed bilateral FTAs with Korea in 2014 and with China in 2015, including ISDS protections, prompting several sets of parliamentary inquiries (Part II(2)).Australia's close trading partner, New Zealand, had already concluded an FTA with China in 2008 that included more expansive ISDS-backed investor protections. In 2015, the New Zealand Parliament has been debating ratification of its own FTA with Korea, with ISDS also now attracting growing scrutiny, as elaborated in Part III below.In both bilateral FTA negotiations, the present Korean government seems to have reverted to a strong preference for concluding investment agreements with extensive ISDS protections, despite public and parliamentary debate around 2011 in the context of ratifying its FTA with the United States. As mentioned briefly in the concluding Part IV, Korea's stance has significant implications for the future trajectory of treaty-based ISDS - and indeed international arbitration more generally - in the Asia-Pacific region, and perhaps even globally.

Countering mainstream theories, this book focuses on the expanding institutionalisation of international law.

Often derided for its asymmetry, this book shows how investors can be held to account in international investment law.

Arbitration Under International Investment Agreements: A Guide to the Key Issues provides a comprehensive analysis of the main issues that arise in investor-state arbitration. The contributing authors take the reader through the intricacies of this procedure before analyzing the main jurisdictional and substantive issues that confront arbitrators. The book concludes with a reflection on the role of precedent in investment arbitration. A diverse group of renowned experts in the field provide comprehensive coverage, making Arbitration Under International Investment Agreements a valuable resource for anyone working in or studying this field of law.