Asia

Asian countries have signed over 1100 international investments agreements, most of which include the investor-state dispute settlement (ISDS) mechanism.

The Association of South-East Asian Nations or ASEAN (formed of Brunei, Burma, Cambodia, Indonesia, Laos, Malaysia, Philippines, Singapore, Thailand, Vietnam) also provides investor protection under the ASEAN Comprehensive Investment Agreement (ACIA) which was adopted in 2009.

In addition, new trade deals with ISDS provisions currently concern the region: the Trans-Pacific Partnership (TPP) and the Regional Comprehensive Economic Partnership (RCEP).

The TPP was sealed in October 2015 between Australia, Canada, Chile, Mexico, New Zealand, Peru, the United States and five Asian countries: Brunei, Japan, Malaysia, Singapore and Vietnam. Indonesia and Taiwan have claimed their intention to join in. The treaty has yet to be ratified.

The investment chapter has revealed the deal includes the investor-state dispute settlement (ISDS) mechanism that would give foreign investors the right to bypass national courts and resort to a parallel system of justice specifically made for them.

RCEP is currently being negotiated between the Asian states of Brunei, Cambodia, China, India, Indonesia, Japan, Laos, Malaysia, Myanmar, the Philippines, Singapore, South Korea, Thailand and Vietnam with Australia and New Zealand.

Although still under negotiations, RCEP has been reported to include ISDS provisions. Korea and Japan have submitted proposals likely to be similar to those in their own bilateral agreements and in the TPP text. India should table a different offer.

The Indian government has been considering a revised comprehensive model of bilateral investment treaty (BIT) that would reduce investor rights, compared to other versions of ISDS. An investor would have to exhaust all local remedies before initiating international arbitration. The model BIT is expected to exclude matters relating to government procurement, taxation, subsidies, compulsory licenses and national security.

India has been the most targeted country in the region, with about 15 disputes - the vast majority of which were initiated by West European countries.

End of 2014, Sri Lanka also announced its intention to move away from traditional models of BIT. It quoted thin relationship between BITs and foreign direct investment, past ISDS disputes and the tendency for BITs to constrain domestic policy space as reasons. Sri Lanka favours the enactment of appropriate domestic legislation to protect foreign investment.

In early 2014, Indonesia announced plans to terminate 67 of its BITs, former president Yudhoyono arguing he did not want multinational companies to pressure developing countries. Indonesia is now in the final stage of finalizing a new model of BIT. The country is currently facing a billion-dollar dispute from UK-listed Churchill Mining and a new US$600 million claim from the Indian mining investor India Metals & Ferro Alloys.

(November 2015)

Reuters | 14-Dec-2017
India’s top court allowed Britain’s Vodafone to initiate a second arbitration process under an India-UK investment pact .
IISD | 13-Dec-2017
No ASEAN country grants general consent to investor–state arbitration in its investment law.
Reuters | 11-Dec-2017
Mongolian Copper Corporation to seek compensation through international arbitration over the Mongolian government’s alleged breach of international rules on investors’ rights.
L’Express | 8-Dec-2017
L’Union européenne et le Japon ont annoncé, dans un communiqué commun, avoir "finalisé" l’accord de libre-échange qu’ils négociaient depuis 2013.
Nikkei | 8-Dec-2017
Japan and the European Union finalized negotiations on a free trade deal, with the two sides aiming to implement it in early 2019.
The Hindu | 5-Dec-2017
The Tamil Nadu government moved the Madras High Court for an interim stay on carmaker Nissan Motor from proceeding with international arbitration over the alleged non-payment of incentives being claimed by it from the State.
Vietnam+ | 4-Dec-2017
The FTA is expected to be completed and start in 2018 or 2019, while the ISDS will be discussed and agreed in later years.
Japan News | 4-Dec-2017
Japan and the European Union intend to bring an economic partnership agreement into effect in 2019 as planned by finalizing tariff-related measures first and setting aside those on investment.
Lexology | 4-Dec-2017
As China’s Belt and Road Initiative continues to gain momentum, the CIETAC investment arbitration rules are designed to offer an alternative institution and rules to resolve disputes between investors and states.
Reuters | 1-Dec-2017
Nissan Motor réclame plus de 770 millions de dollars (646 millions d‘euros) à l‘Etat indien pour non versement d‘aides publiques et a ouvert une procédure d‘arbitrage internationale.

0 | 10 | 20 | 30 | 40 | 50 | 60 | 70 | 80 | ... | 450