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The ASEAN Comprehensive Investment Agreement: Realizing a Regional Community

  • Zewei Zhong (a1)

Abstract

In recent decades, States have concluded numerous regional investment treaties, even as the feverish growth in bilateral investment treaties worldwide continues apace. This increasing regionalism within international investment law is a double-edged phenomenon. On the one hand, the risks of fragmentation and incoherence increase exponentially as a regional layer is added to the already-messy “spaghetti bowl” of investment treaties. The noble dream of a uniform, multilateralized set of investment-protection standards thus looks ever more unattainable. On the other hand, a regional investment treaty affords an opportunity for a group of States to balance, in a particularistic manner, between investment-related obligations and other non-investment priorities. This essay focuses on the ASEAN Comprehensive Investment Agreement signed in 2009, arguing that it is a region-specific bargain embedded within ASEAN's wider normative and institutional framework. The potential conflicts between ASEAN Member States' investment-related obligations and their commitments under two other regional projects are explored, and recommendations are made as to how arbitral tribunals can manage such conflicts.

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1 For example, at the end of 2008, the total number of bilateral investment treaties (“BITs”) concluded worldwide had risen to 2,676: UNCTAD, “Recent Developments in International Investment Agreements (2008-June 2009)”, IIA Monitor No. 3 (2009), UNCTAD/WEB/DIAE/IA/2009/8 (Geneva: UNCTAD, 2009) at 2. For a discussion of the implications of this phenomenal growth in treaty-making, see e.g., Diehl, Alexandra N., “Tracing a Success Story or ‘The Baby Boom of BITs’” in Reinisch, August & Knahr, Christina, eds., International Investment Law in Context (The Netherlands: Eleven International Publishing, 2008) 7 (“IIL in Context”).

2 Salacuse, Jeswald W., “The Treatification of International Investment Law” (2007) 13 Law & Bus. Rev. Am. 155 at 157.

3 UNCTAD, “Latest Developments in Investor-State Dispute Settlement”, IIA Issues Note No. 1 (2010), UNCTAD/WEB/DIAE/IA/2010/3 (Geneva: UNCTAD, 2010) at 2.

4 See e.g., Schill, Stephan, The Multilateralization of International Investment Law (New York: Cambridge University Press, 2009) at 1519; Schwabel, Stephen M., “The Influence of Bilateral Investment Treaties on Customary International Law” (2004) 98 Am. Society Int'l L. Proc. 27; Lowenfeld, Andreas F., “Investment Agreements and International Law” (2003) 42 Colum. J. Transnat'l L. 123 at 128130; Mann, F.A., “British Treaties for the Promotion and Protection of Investments” (1981) 52 Brit. Y.B. Int'l L. 241 at 249.

5 See e.g., Sornarajah, M., The International Law on Foreign Investment, 3rd ed. (Cambridge: Cambridge University Press, 2010) at 174-175, 184186; Kishoiyian, Bernard, “The Utility of Bilateral Investment Treaties in the Formulation of Customary International Law” (1994) 14 Nw. J. Int'l L. & Bus. 327 at 329.

6 Schwabel, supra note 4 at 27; Lowenfeld, supra note 4 at 128.

7 For arguments to this effect, see e.g., Schill, supra note 4 at 321-357; Sureda, Andrés Rigo, “Precedent in Investment Treaty Arbitration” in Binder, Christinaet al., eds., International Investment Law for the 21st Century: Essays in Honour of Christoph Schreuer (Oxford: Oxford University Press, 2009) 830; Schreuer, Christoph & Weiniger, Matthew, “A Doctrine of Precedent?” in Muchlinski, Peter, Ortino, Federico & Schreuer, Christoph, eds., The Oxford Handbook of International Investment Law (Oxford: Oxford University Press, 2008) 1188; Bjorklund, Andrea K., “Investment Treaty Arbitral Decisions as Jurisprudence Constante” in Picker, Colin B., Bunn, Isabella D. & Arner, Douglas W., eds., International Economic Law: The State and Future of the Discipline (Oxford: Hart Publishing, 2008) 265; Cheng, Tai-Heng, “Precedent and Control in Investment Treaty Arbitration” (2007) 30 Fordham Int'l L.J. 1014.

8 UNCTAD, International Investment Rule-Making: Stocktaking, Challenges and the Way Forward, UNCTAD/ITE/IIT/2007/3 (Geneva: UNCTAD, 2008) at 1.

9 Ibid. at 88-89. See also Sornarajah, supra note 5 at 183-185. A further concern for investment treaty arbitration is that ‘new generation’ BITs have been concluded in recent years, which may spawn arbitral decisions inconsistent with the case law applying the older BITs: see UNCTAD, Investor-State Dispute Settlement and Impact on Investment Rulemaking, UNCTAD/ITE/IIA/2007/3 (Geneva: UNCTAD, 2007) at 9293.

10 Sornarajah, M., “The Clash of Globalizations and the International Law on Foreign Investment”, The Simon Reisman Lecture in International Trade Policy (Centre for Trade Policy and Law, Ottawa) (12 September 2002) at 3.

11 See e.g., Schill, supra note 4 at 373; Schneiderman, David, Constitutionalizing Economic Globalization: Investment Rules and Democracy's Promise (New York: Cambridge University Press, 2008) at 69; Harten, Gus Van, Investment Treaty Arbitration and Public Law (Oxford: Oxford University Press, 2007) at 4.

12 See Hirsch, Moshe, “Interactions Between Investment and Non-Investment Obligations” in Muchlinski, Peter, Ortino, Federico & Schreuer, Christoph, eds., The Oxford Handbook of International Investment Law (Oxford: Oxford University Press, 2008) 154; Subedi, Surya P., International Investment Law: Reconciling Policy and Principle (Portland, Oregon: Hart Publishing, 2008) at 164171; Puvimanasinghe, Shyami Fernando, Foreign Investment, Human Rights and the Environment (Leiden, The Netherlands: Martinus Nijhoff, 2007), especially c. 4; Sornarajah, supra note 5 at 224-231; Been, Vicki & Beauvais, Joel C., “The Global Fifth Amendment? NAFTA's Investment Protections and the Misguided Quest for an International ‘Regulatory Takings’ Doctrine” (2003) 78 N.Y.U. L. Rev. 30 at 132135.

13 This term has recently been coined by August Reinisch, “‘Investment and…’—The Broader Picture of Investment Law” in IIL in Context, supra note 1 at 201.

14 See e.g., Reinisch, ibid. at 202; Hirsch, supra note 12 at 157-173; Puvimanasinghe, supra note 12 at 144.

15 Report of the World Commission on Environment and Development: Our Common Future, UN GAOR, 42nd Sess., Supp. No. 25, UN Doc. A/42/427 (4 August 1987), Annex at 54, which concisely defined the concept of sustainable development as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs”.

16 Puvimanasinghe, supra note 12 at 97-98. For similar arguments on the potential of the concept of sustainable development in harmonizing international economic law with other fields of international law like development, human rights and the environment, see e.g., Schrijver, Nico, The Evolution of Sustainable Development in International Law: Inception, Meaning and Status (The Hague: Hague Academy of International Law, 2008) at 208-219, 224225; Hossain, Kamal, “Sustainable Development: A Normative Framework for Evolving a More Just and Humane International Economic Order” in Chowdhury, Subrata Roy, Denters, Erik M.G. & Waart, Paul J.I.M. de, eds., The Right to Development in International Law (Boston: Martinus Nijhoff Publishers, 1992) 259 at 262265.

17 UNCTAD, Investment Provisions in Economic Integration Agreements, UNCTAD/ITE/IIT/2005/10 (Geneva: UNCTAD, 2006) at 31(“Investment Provisions in EIAs”), which states that there were 218 “economic integration investment agreements” as of June 2005, with more than 99% of all countries being parties to an EIA.

18 North American Free Trade Agreement Between the Government of Canada, the Government of Mexico and the Government of the United States, 17 December 1992, 32 I.L.M. 289 (“NAFTA”).

19 On the relationships between BITs and RITs, see UNCTAD, Investment Provisions in EIAs, supra note 17 at 128, 141; OECD, “Relationships between International Investment Agreements”, Working Papers on International Investment, No. 2004/1 (May 2004) at 47.

20 Cf. Woolcock, Stephen, “Making Multi-Level Rules Work: Trade and Investment Rules in Regional and Bilateral Agreements” in Lombaerde, Philippe de, ed., Multilateralism, Regionalism and Bilateralism in Trade and Investment: 2006 World Report on Regional Integration (Dordretcht, the Netherlands: Springer, 2007) 37 at 3739, arguing that rule-making on trade and investment issues has shifted from the multilateral level (e.g., the OECD and the WTO) during the period of 1945 to the mid-1990s, to the regional/bilateral level. The challenge is thus to ensure that there remains a positive interaction between the simultaneous processes of rule-making along the bilateral, plurilateral, regional and bilateral levels, in order to avoid incoherence and divergence, or what Woolcock terms “regulatory regionalism” (ibid. at 47-52).

21 See e.g., UNCTAD, International Investment Rule-Making: Stocktaking, Challenges and the Way Forward, UNCTAD/ITE/IIT/2007/3 (Geneva: UNCTAD, 2008) at 28; OECD, International Investment Law: Understanding Concepts and Tracking Innovations (Paris: OECD, 2008) at 141152(“Understanding Concepts”).

22 See online: <http://www.aseansec.org/documents/FINAL-SIGNED-ACIA.pdf> (“ACIA”). According to Art. 48, the ACIA will enter into force “after all Member States have notified or, where necessary, deposited instruments of ratification with the Secretary-General of ASEAN”. As of September 2010, eight ASEAN Members (excluding Indonesia and Thailand) had completed the requisite procedures. See the “Table of ASEAN Treaties/Agreements and Ratification”, online: <http://www.aseansec.org/Ratification.pdf> at 10-11 (accessed on 3 January 2011).

23 ASEAN Economic Community Blueprint, online: <http://www.aseansec.org/21083.pdf>.

24 AEC Blueprint, ibid. at para. 5. On ASEAN's progression towards rules-based frameworks governing Member States' economic relations, see Davidson, Paul J., ASEAN: The Evolving Legal Framework for Economic Cooperation (Singapore: Times Academic Press, 2002) at 158162.

25 For a positive verdict on the claim that ASEAN's investment-related initiatives will promote foreign direct investment (“FDI”), see e.g., Aldaba, Rafaelita M., Yap, Josef T. & Petri, Peter A., “The AEC and Investment and Capital Flows” in Plummer, Michael G. & Yue, Chia Siow, eds., Realizing the ASEAN Economic Community: A Comprehensive Assessment (Singapore: Institute of Southeast Asian Studies, 2009) 53. See also UNCTAD, The Role of International Investment Agreements in Attracting Foreign Direct Investment to Developing Countries, UNCTAD/DIAE/IA/2009/5 (Geneva: UNCTAD, 2009) at 64, 105106, concluding that ‘preferential trade and investment agreements’ do stimulate FDI inflows, by removing intraregional trade barriers and creating an enlarged potential market.

26 ACIA, Preamble (emphasis added). See also AEC Blueprint, supra note 23 at para. 26.

27 2004 United States Model Bilateral Investment Treaty, online: U.S. Department of State <http://www.state.gov/documents/organization/117601.pdf> (“U.S. Model BIT”).

28 Highlights of the ASEAN Comprehensive Investment Agreement (ACIA)”, presented at the 40th ASEAN Economic Ministers Meeting (26 August 2008), online: <http://www.aseansec.org/21885.ppt> at 4.

29 AEC Blueprint, supra note 23 at para. 27. The other three pillars of the ACIA (see e.g., Art. 24-26) are investment liberalization, investment facilitation and cooperation, and investment promotion: see AEC Blueprint, supra note 23 at paras. 28-30; Aldaba, Yap & Petri, supra note 25 at 85.

30 See ACIA, Art. 47, which states that (subject to transitional arrangements) “[u]pon the entry into force of [the ACIA], the ASEAN IGA and the AIA Agreement shall be terminated.”

31 1987 Agreement for the Promotion and Protection of Investments, signed by the Economic Ministers on 15 December 1987, online: <http://www.aseansec.org/6464.htm> (“IGA”).

32 1998 Framework Agreement on the ASEAN Investment Area, signed by Economic Ministers on 7th October 1998, online: <http://www.aseansec.org/6466.htm> (“AIA”).

33 See the main text accompanying note 24, supra.

34 This image of “multilateralized protection” is loosely based on the ‘multilateralization’ thesis of Schill, supra note 4 at 15-19. In this essay, I do not assess the validity of Schill's thesis; I merely challenge its specific application to the ACIA as an explanatory model.

35 For critical discussions of ASEAN's previous investment regime as constituted by the IGA and the AIA, see e.g., Jarvis, Darryl S.L., “Foreign Direct Investment and Investment Liberalization in Asia: Assessing ASEAN's Initiatives”, Lee Kuan Yew School of Public Policy Research Paper Series, LKYSPP08-002 (15 July 2008), online: <http://www.spp.nus.edu.sg/docs/rr/RR2%20ASEAN%20Investment%20Liberalization.pdf>; Davidson, supra note 24 at 88-96; Lawan Thanadsillapakul, “Framework Agreement on the ASEAN Investment Area (AIA)”, online: <http://asialaw.tripod.com/articles/lawanaia.html>; Thanadsillapakul, Lawan, “ASEAN Bilateral Investment Agreements”, online: <http://asialaw.tripod.com/articles/aseanbit.html>.

36 For the purposes of this essay, I will assume that the U.S. Model BIT and NAFTA Chapter 11 are by and large investor-protective—not least because the ACIA's drafters have apparently assumed likewise: see the main text accompanying notes 24-28, supra. This assumption is controversial, to say the least: see e.g., Vandevelde, Kenneth J., “A Comparison of the 2004 and 1994 U.S. Model BITs: Rebalancing Investor and Host Country Interests” (2009) 1 Y.B. Int'l L. & Pol'y 283.

37 ACIA, Art. 1(b)-(c).

38 Dolzer, Rudolf & Schreuer, Christoph, Principles of International Investment Law (Oxford: Oxford University Press, 2008) at 22; Sornarajah, supra note 5 at 188; Dolzer, Rudolf & Stevens, Margrete, Bilateral Investment Treaties (The Hague: Martinus Nijhoff, 1995) at 11-13, 2122.

39 Hence, NAFTA's general Preamble refers to priorities not directly related to trade and investment, including “environmental protection” and “basic workers' rights”. The Preamble of the U.S. Model BIT similarly affirms a desire to “achieve [the investment-related] objectives in a manner consistent with the protection of health, safety, and the environment, and the promotion of internationally recognized labor rights.”

40 Articles 2(a) and 1(d) of the ACIA, read with Art. 24-26. The ACIA thus builds on the AIA, which included a “Promotion and Awareness Programme” under which ASEAN Member States were to organize joint investment-promotion activities, conduct regular consultation among their various investment agencies, etc.: see AIA, Art. 5(b) and Schedule II. On ASEAN's various initiatives on promoting and facilitating investment, see Low, Linda, ASEAN Economic Cooperation and Challenges (Singapore: Institute of Southeast Asian Studies, 2004) at 3441; Davidson, supra note 24 at 90-96; Thanadsillapakul, “AIA”, supra note 35.

41 UNCTAD, “Investment Promotion Provisions in International Investment Agreements”, UNCTAD/ITE/IIT/2007 (Geneva: UNCTAD, 2008) at 82.

42 Ibid. at 11.

43 Ibid. at 6-7, stating that “investment promotion provisions stand out as a special category in IIAs since—contrary to the treaty obligations concerning investment protection—they establish a commitment of the contracting parties to do something.” (emphasis in original)

44 See also AEC Blueprint, supra note 23 at para. 29, which calls for the promotion of intraASEAN investments, “particularly investments from ASEAN-6 to CLMV” (“CLMV” referring to Cambodia, Laos, Myanmar and Vietnam, being the least-developed and newer ASEAN Member States; and “ASEAN-6” referring to the other, more developed Members).

45 ACIA, Art. 25(c).

46 ACIA, Art. 4(d)-(e).

47 For summaries on the various tests used in IIAs for ascertaining the nationality of a corporate investor, see Dolzer & Schreuer, supra note 38 at 49-52; OECD, Understanding Concepts, supra note 21 at 18-28; UNCTAD, International Investment Agreements: Key Issues, vol. 1, UNCTAD/ITE/IIT/2004/10 (Geneva: UNCTAD, 2004) at 128131 (“IIAs Vol. 1”); Dolzer & Stevens, supra note 38 at 35-36.

48 IGA, Art. I(2). See also Yaung Chi Oo Trading Pte. Ltd. v. Government of the Union of Myanmar (2003) 42 I.L.M. 2003(“Yaung Chi Oo”) at para. 49, where the tribunal held that “in the case of companies, the [IGA] requires both local incorporation and effective management.” It further observed that the requirement of effective management was included in order to prevent forum-shopping by foreign investors (at para. 52).

49 AIA, Art. 1, which further defines the “effective ASEAN equity” as the “ultimate holdings by nationals or juridical persons of ASEAN Member States in that investment”. Hence, a juridical person from a non-ASEAN State can enjoy intra-ASEAN mobility, as well as the benefits of national treatment and MFN treatment throughout the region, if they qualify for the “ASEAN investor” status: see Davidson, supra note 24 at 95; Lawan Thanadsillapakul, “Framework Agreement on the ASEAN Investment Area (AIA)”, online: <http://asialaw.tripod.com/articles/lawanaia.html>.

50 Schill, supra note 4 at 236-237; Van Harten, supra note 11 at 116.

51 Cf. NAFTA Chapter 11, Art. 1139; U.S. Model BIT, Art. 1.

52 ACIA, Art. 4(c), which sets out an enumerative but non-exhaustive ‘asset-based’ definition of “investment”, including company shares and intellectual property rights. This comprehensive definition bears close similarities to the definitions used in NAFTA Chapter 11, Art. 1139 and U.S. Model BIT, Art. 1, respectively. In contrast to this, Art. 2 of the AIA had expressly excluded portfolio investments. For a discussion of the various types of definitions of ‘investment’ used in investment treaties (e.g., broad versus narrow, exhaustive versus non-exhaustive, asset-based versus enterprise-based), see Engela C. Schlemmer, “Investment, Investor, Nationality, and Shareholders” in Muchlinski, Ortino & Schreuer, supra note 12 at 55-58; OECD, Understanding Concepts, supra note 21 at 49-53; UNCTAD, IIAs Vol. 1, supra note 47 at 119-126; Dolzer & Stevens, supra note 38 at 25-31.

53 ACIA, Art. 4(a).

54 See e.g., Dolzer & Stevens, supra note 38 at para. 50; Christina Knahr, “Investments ‘in Accordance with Host State Law’” in IIL in Context, supra note 1 at 28-35.

55 Sornarajah, supra note 5 at 194-195; UNCTAD, IIAs Vol. 1, supra note 47 at 122.

56 Cf. Sornarajah, supra note 5 at 196, 232, discussing the alternative formulation (found in certain treaties) that a protected investment must be “made in accordance with the laws, policies and regulations from time to time in existence” in the host State. Sornarajah criticizes this “subjective” formulation as “depriv[ing] the treaty of all its protective content, as the host state could defeat the treaty's protection simply by changing its laws.” (ibid. at 232)

57 Art. II(1) of the IGA, which provides that the IGA applies only to investments “which are specifically approved in writing and registered by the host country and upon such conditions as it deems fit for the purposes of this Agreement.” In Yaung Chi Oo, supra note 48 at para. 58, the arbitral tribunal (considering the IGA) noted that the requirement of specific approval was “not universal” to investment treaties, and “goes beyond the general rule that for a foreign investment to enjoy treaty protection it must be lawful under the law of the host State.” By contrast, M. Sornarajah & Rajenthran Arumugam, “An Overview of the Foreign Direct Investment Jurisprudence” in Denis Hew, ed., Brick by Brick: The Building of an ASEAN Economic Community (Singapore: Institute of Southeast Asian Studies, 2007) 144 at 166 (“Brick by Brick”) argue that the ‘specific approval’ requirement in the IGA helped preserve the host State's regulatory space as regards foreign investment. See also Jarvis, supra note 35 at 10; Lawan Thanadsillapakul, “ASEAN Bilateral Investment Agreements”, online: <http://asialaw.tripod.com/articles/aseanbit.html>.

58 UNCTAD, IIAs Vol. 1, supra note 47 at 247. See also Sornarajah, supra note 5 at 195, 232; Dolzer & Stevens, supra at 54-56.

59 Articles 5 and 6 of the ACIA respectively, which cover the “admission” and “establishment” of investments. By contrast, the IGA's substantive provisions did not extend to admission/establishment. On the extension of the national treatment and MFN treatment standards to the pre-entry stage, see e.g., UNCTAD, IIAs Vol. 1, supra note 47 at 168-169, 194-195.

60 ACIA, Annex 1(a), which also states that, where the Member State denies an application for approval, it is required to “inform the applicant in writing of the reasons for such denial.”

61 Van Harten, supra note 11 at 80.

62 On the standard substantive protections found BITs, see generally Schill, supra note 4 at 74-87; Subedi, supra note 12 at 84, 87-89; Sornarajah, supra note 5 at 201-215; Dolzer & Stevens, supra note 38 at 58-66, 85-93, 97-118. See also UNCTAD, Trends in International Investment Agreements: An Overview, UNCTAD/ITE/IIT/13 (Geneva: UNCTAD, 1999) at 7382.

63 See the following provisions of the IGA: Art. VI (expropriation and compensation), Art. IV(2) (FET), Art. IV(1) (full protection and security), Art. IV(2) (MFN treatment), and Art. IV(4) (national treatment not automatically granted, but may be specifically negotiated between two or more Contracting Parties).

64 AIA, Art. VIII(1).

65 AIA, Art. 7(1)(b).

66 AIA, Art. 12(1) states: “In the event that this Agreement provides for better or enhanced provisions over the said Agreement and its Protocol, then such provisions of this Agreement shall prevail.” The argument that the AIA extended the substantive protection and arbitral jurisdiction in the earlier IGA to “ASEAN investors” and their investments was made by the claimant in Yaung Chi Oo (supra note 48 at para. 64). See also Sornarajah & Arumugam, supra note 57 at 165, who (citing Art. 30 of the Vienna Convention on the Law of Treaties, UN Doc. A/Conf.39/27; (1969) 8 I.L.M. 679 (“VCLT”)) argue that because the AIA is a later treaty dealing with the same subject-matter as the IGA, both treaties “should be read together, as complementary treaties seeking to supplement defects and strengthen propositions.”

67 Yaung Chi Oo, supra note 48 at para. 66; see also Sornarajah & Arumugam, supra note 57 at 165-166, criticizing the tribunal's holding as “robbing [the AIA] of any content”.

68 Supra note 62. These provisions include national treatment (Art. 5), MFN treatment (Art. 6), FET and full protection and security (Art. 11), and expropriation/compensation (Art. 14).

69 IGA, Art. VII(1).

70 ACIA, Art. 13(3), which exhaustively lists the laws and regulations a host State may apply to prevent or delay a transfer, including those relating to bankruptcy, insolvency or the protection of creditors' rights, and taxation.

71 See NAFTA Chapter 11, Art. 1107, and U.S. Model BIT, Art. 9.

72 See respectively, Art. 7(1) and 8 of the ACIA.

73 Cf. Schill, supra note 4 at 65-66.

74 ACIA, Art. 17. On the balance struck by BITs between the protection of the foreign investor's interests and other public-welfare objectives like human rights and environmental protection, as well as the concomitant need to preserve the host State's regulatory space in these areas, see Sornarajah, supra note 5 at 224-231.

75 The Annexes to NAFTA contain a number of more specific exceptions, including country-specific reservations for liberalization commitments in certain sectors (Annexes I-II), activities/industries reserved for the State (Annex III), and sector-specific exceptions from MFN treatment (Annex IV). Both treaties also contain provisions (with similar wording to the ACIA, Art. 17) on non-discriminatory measures taken in pursuit of public-welfare objectives such as the protection of human life or health: see U.S. Model BIT, Art. 8(3)(c); NAFTA Chapter 11, Art. 1106(6). However, each of these provisions only exempts specific types of performance requirements otherwise prohibited under the treaty.

76 ACIA, Art. 18(b); U.S. Model BIT, Art. 18(2); NAFTA, Art. 2102. For discussion of the ‘essential security interests’ clause, see UNCTAD, The Protection of National Security in IIAs, UNCTAD/DIAE/IA/2008/5 (Geneva: UNCTAD, 2009), c. 2; OECD, International Investment Perspectives 2007: Freedom of Investment in a Changing World (Paris: OECD, 2007) at 101-105.

77 Yaung Chi Oo, supra note 48 at para. 81, holding that, because the IGA and the AIA were “intended to operate separately”, there was no warrant for extending the IGA's procedural provisions (including those on investor-State arbitration) to the AIA. Cf. Sornarajah & Arumugam, supra note 57 at 165-166, criticizing this holding. On the relationship between the two treaties, see also the discussion of Yaung Chi Oo, supra note 66.

78 Including submission of claims, conduct of the arbitration, and enforcement of awards: see generally, Section B of the ACIA (Articles 28-41).

79 Van Harten, supra note 11 at 4-6; cf. Campbell McLachlan, Q.C., Shore, Laurence & Weiniger, Matthew, eds., International Investment Arbitration: Substantive Principles (New York: Oxford University Press, 2007) at 2123 (arguing that a balance between the rights of the investor and the host State can be struck within investor-State arbitration).

80 See e.g., LG&E v. Argentina, Decision on Liability, ICSID Case No. ARB/02/1 (3 October 2006) at para. 94, holding that “[i]nternational law overrides domestic law when there is a contradiction”. See also Dolzer & Schreuer, supra note 38 at 269-271.

81 ACIA, Art. 32-33.

82 NAFTA Chapter 11, Art. 1116-1117; U.S. Model BIT, Art. 24.

83 IGA, Art. X(2). Sornarajah & Arumugam, supra note 57 at 166 state that enabling disputes to be brought by the host State against the foreign investor is “an absolutely novel proposition not found in any other investment treaty.”

84 Subject to the MFN and national treatment clauses. See supra notes 55-59, and the main text accompanying.

85 Cf. UNCTAD, Investment Provisions in EIAs, supra note 1 7 at 69-72, discussing the fact that general exceptions are found in many regional economic integration agreements.

86 ACIA, Art. 6(3).

87 ACIA, Art. 9(4). The final phase of the progressive reduction and elimination of investment restrictions is targeted for completion in 2014 for 8 ASEAN member States (except Laos and Myanmar, for whom the target is 2015).

88 ACIA, Footnote 4, para. (a).

89 Cf. Schill, supra note 4 at 151-173, who forcefully argues that MFN clauses should presumptively apply to both substantive and procedural rules in IIAs, thus comprehensively “multilateralizing” investment-protection standards. ACIA, Footnote 4, para. (a) is arguably a pushback by ASEAN against such multilateralization of investor-State arbitration rules.

90 AEC Blueprint, supra note 23 at paras. 4, 6.

91 See e.g., Yean, Tham Siew, “ASEAN Economic Cooperation: Moving Towards an ASEAN Economic Community” in Yean, Tham Siew, Ping, Lee Poh & Othman, Norani, eds., Community in ASEAN: Ideas & Practices (Bangi: Penerbit Universiti Kebangsaan Malaysia, 2008) at 3842; Severino, Rodolfo C., Southeast Asia in Search of an ASEAN Community: Insights from the Former ASEAN Secretary-General (Singapore: Institute of Southeast Asian Studies, 2006) at 342347; Denis Hew, “Conclusion: Towards an ASEAN Economic Community by 2015” in Brick by Brick, supra note 57 at 210-218; Lawan Thanadsillapakul, “Open Regionalism and Deeper Integration”, online: <http://asialaw.tripod.com/articles/lawanasean.thml>. See also UNCTAD, Investment Provisions in EIAs, supra note 17 at 58, stating that rules on international investment are increasingly being adopted within bilateral, regional, interregional and plurilateral agreements dealing with multiple economic objectives (such as trade in goods and services, investment, finance and development) within a “common normative framework”.

92 Art. 102(c) states, as one of NAFTA's general objectives, “increasing] substantially investment opportunities in the territories of the Parties.” See Meg N. Kinnear, Bjorklund, Andrea K. & Hannaford, John F.G., eds., Investment Disputes under NAFTA: An Annotated Guide to NAFTA Chapter 11 (The Netherlands: Kluwer Law International, 2006), “General Section” at 3036.

93 ACIA, Art. 24. UNCTAD, Investment Provisions in EIAs, supra note 17 at 121-125 notes that investment promotion provisions are a common feature of regional economic treaties containing investment provisions, as they aim to promote intra-regional investment flows, and to assist countries which are at different levels of development.

94 The project of narrowing the development gap within ASEAN is further articulated and implemented in the Hanoi Declaration on Narrowing the Development Gap, online: <http://www.aseansec.org/934.htm>, and the Initiative for ASEAN Integration (IAI) Strategic Framework and IAI Work Plan 2 (2009-2015), online: <http://www.aseansec.org/22325.pdf>. For a review of ASEAN's various efforts at assisting the CLMV economies, see Yue, Chia Siow, “ASEAN and Narrowing the Development Gap” in Soesastro, Hadi & Joewono, Clara, eds., The Inclusive Regionalist: A Festschrift Dedicated to Jusuf Wanandi (Jakarta: Centre for Strategic and International Studies, 2007) 319 at 327333; Severino, supra note 91 at 70-75.

95 For the possible contributions and obstacles which foreign investment presents to greater economic development in ASEAN's economies, see Thomsen, Stephen, Southeast Asia: The Role of Foreign Direct Investment Policies in Development, Working Papers on International Investment (OECD, 1999), available online: <http://www.oecd.org/dataoecd/5/24/1897793.pdf> at 2328; Ragayah Haji Mat Zin, “Poverty and Inequality Reduction in the ASEAN Community: Is Economic Integration a Possible Answer?” in Tham, Lee & Othman, supra note 91 at 84.

96 See e.g., Schulz, Michael, Söderbaum, Frederik & Öjendal, Joakim, eds., Regionalization in a Globalizing World: A Comparative Perspective on Forms, Actors and Processes (New York: Zed Books, 2001) at 4, 14; Fawcett, Louise & Hurrell, Andrew, eds., Regionalism in World Politics: Regional Organization and International Order (New York: Oxford University Press, 1995) at 4.

97 Hettne, Björn, “Globalization and the New Regionalism: The Second Great Transformation” in Hettne, Björn, Inotai, András & Sunkel, Osvaldo, eds., Globalism and the New Regionalism (New York: St. Martin's Press, 1999) at 8 (emphasis added). See also Higgott, Richard, “The Theory and Practice of Region: The Changing Global Context” in Fort, Bertrand & Webber, Douglas, eds., Regional Integration in East Asia and Europe: Convergence or Divergence? (New York: Routledge, 2005) 17 at 2122.

98 Marianne H. Marchand, “North American Regionalisms and Regionalization in the 1990s” in Schulz, Söderbaum & Öjendal, ibid. at 209-210, arguing that NAFTA is a neoliberal, market-driven project of regionalization lacking in political institutions and structures.

99 Lee Poh Ping, “AFTA, the New Regionalism, Globalization, and the ASEAN Community” in Tham, Lee & Othman, supra note 91 at 69-75; The ASEAN Community: Unblocking the Roadblocks, ASEAN Studies Centre, Report No. 1 (Singapore: Institute of Southeast Asian Studies, 2008); Severino, supra note 91 at 367-371.

100 Articles 1 and 2 of the Charter of the Association of Southeast Asian Nations (“ASEAN Charter”), signed by the Heads of State/Government on 20 November 2007, online: <http://www.aseansec.org/publications/ASEAN-Charter.pdf>.

101 ASEAN Charter, Art. 3.

102 See the Declaration of ASEAN Concord II, adopted by the Heads of State/Government on 7 October 2003, online: <http://www.aseansec.org/15159.htm> at paras. 1, 10; and the Cebu Declaration on the Acceleration of the Establishment of an ASEAN Community by 2015, signed by the Heads of State/Government in Cebu, the Philippines on 30 January 2007, online: <http://www.aseansec.org/19260.htm>.

103 ASEAN Socio-Cultural Community Blueprint, online: <http://www.aseansec.org/5187-19.pdf> (“ASCC Blueprint”).

104 AEC Blueprint, supra note 23 at paras. 1-2.

105 Including Singapore, Malaysia, Brunei, Thailand and the Philippines. For various discussions of the recurring problem of haze pollution in ASEAN, see e.g., Lian, Koh Kheng, “Towards an Effective ASEAN Environmental Governance for Sustainable Development?” (2008) 20 Asian Review of Public Administration 35 at 3842; Severino, supra note 91 at 107-116; Qadri, S. Tahir, ed., Fire, Smoke, and Haze: The ASEAN Response Strategy (Manila, The Philippines: Asian Development Bank, 2001) at 3537; Tay, Simon S.C., “Southeast Asian Fires: The Challenge for International Environmental Law and Sustainable Development” (1999) 11 Geo. Int'l Envtl. L. Rev. 241 at 245247.

106 Qadri, ibid. at 49; Tay (1999), ibid. at 245.

107 Tan, Alan Khee-Jin, “The ASEAN Agreement on Transboundary Haze Pollution: Prospects for Compliance and Effectiveness in the Post-Suharto Era” (2005) 13 N.Y.U. Envtl. L.J. 647 at 656657 (see also the various estimates cited by Tan in footnotes 35 and 36); Qadri, supra note 105 at 54-55.

108 Particularly severe episodes occurred in 1982-1983, 1994, 1999, 2002 and 2005. See e.g., Qadri, supra note 105 at 45-48; Severino, supra note 91 at 116.

109 And not (as is popularly believed) local subsistence farmers engaging in traditional practices of “shifting cultivation”: see Tay (1999), supra note 105 at 248-249.

110 Tan (2005), supra note 107 at 653, note 23; see also “Indonesia Admits Forest Fires Are Man-Made” The Straits Times (10 October 1999).

111 Tan (2005), supra note 107 at 653; Tay (1999), supra note 105 at 249, citing “The Forests Are Burning Again” The Straits Times (29 March 1998) 40.

112 Tay, Simon S.C., “South East Asia Forest Fires: Haze over ASEAN” (1998) 7:2R.E.C.I.E.L. 202 at 203; Tan (2005), supra note 107 at 654, note 24. For example, during an episode of severe haze pollution in 2005, Indonesia alleged that several Malaysian-owned oil palm plantation companies were responsible for starting the fires: see Tan (2005), ibid. at 722.

113 ASEAN, Regional Haze Action Plan (23 December 1997), online: <http://www.aseansec.org/8953.htm>, which focuses on technical assistance and capacity-building in the areas of prevention, monitoring, and mitigation. On ASEAN's various responses to the haze before 2002, see e.g., Qadri, supra note 105 at 58-61; Tay (1999), supra note 105 at 258-260.

114 Kheng-Lian, Koh & Robinson, Nicholas A., “Strengthening Sustainable Development in Regional Inter-Governmental Governance: Lessons from the ‘ASEAN Way’” (2002) 6 S.J.I.C.L. 640 at 655656; Qadri, supra note 105 at 58-61; Tay (1999), supra note 105 at 260.

115 Severino, supra note 91 at 11-18; Simon, S.C. Tay, “Institutions and Processes: Dilemmas and Possibilities” in Simon, S.C. Tay, Estanislao, Jesus P. & Soesastro, Hadi, eds., Reinventing ASEAN (Singapore: Institute of Southeast Asian Studies, 2001) 243 at 246255. On how the “ASEAN Way” shapes ASEAN's governance frameworks on regional environmental issues, see Koh & Robinson, supra note 114 at 644-658. The “ASEAN Way” has been placed on a formal footing in Art. 2(2) of the ASEAN Charter, which provides that the principles of ASEAN cooperation include “reliance on peaceful settlement of disputes”, “non-interference in the internal affairs of ASEAN Member States” and “enhanced consultations on matters seriously affecting the common interest of ASEAN”.

116 ASEAN Agreement on Transboundary Haze Pollution, signed by the Heads of State/Government on 10 June 2002, online: <http://www.aseansec.org/pdf/agr_haze.pdf> (“ATHP”). As of September 2010, nine ASEAN Members (with the crucial exception of Indonesia) had ratified the ATHP: “Table of ASEAN Treaties/Agreements and Ratification”, online: <http://www.aseansec.org/Ratification.pdf> at 4647 (accessed on 3 January 2011).

117 Tan (2005), supra note 107 at 649; Koh & Robinson, supra note 114 at 657.

118 ATHP, Art. 2 (emphasis added).

119 Koh & Robinson, supra note 114 at 641-642.

120 Cf. ASEAN Report to the World Summit on Sustainable Development (Jakarta: ASEAN Secretariat, 2002) at 56.

121 U.N. Doc. A/Conf.48/14/Rev. 1 (1973) (“Stockholm Declaration”), which is substantially reproduced in Principle 2 of the 1992 Rio Declaration on Environment and Development, UN Doc. A/CONF.151/26 (vol. I).

122 United States v. Canada (1941) 3 R.I.A.A. 1907 (‘the Trail Smelter case’). Principle 21 has also been affirmed by ASEAN Members as part of “generally accepted principles of international law”: see Article 20(1) of the 1985 Agreement on the Conservation of Nature and Natural Resources, online: <http://www.aseansec.org/1490.htm>. See more generally, Handl, Gunther, “Transboundary Impacts” in Bodansky, Daniel, Brunnée, Jutta & Hey, Ellen, ed., The Oxford Handbook of International Environmental Law (Oxford: Oxford University Press, 2007); Sands, Philippe, Principles of International Environmental Law, 2nd ed. (New York: Cambridge University Press, 2003) at 241246.

123 Article 3(1) of the ATHP, which also reflects Principle 21 of the Stockholm Declaration, supra note 121. Sands, ibid. at 236 notes that the two elements in Principle 21 (the sovereign right of States over their natural resources, and the responsibility not to cause transboundary environmental damage) are intertwined, and “cannot be separated without fundamentally changing their sense and effect”.

124 On the New International Economic Order, see e.g., Sornarajah, supra note 5 at 21-23; Hossain, Kamal, ed., Legal Aspects of the New International Economic Order (New York: Nichols Pub. Co., 1980).

125 Article 2(2)(a) of the Charter on the Economic Rights and Duties of States, UNGA Res. 3821 (XXIX) (12 December 1974). For a detailed account of how the PNSR principle was vigorously advanced by developing countries in the post-1962 post-colonial era, see Schrijver, Nico, Sovereignty over Natural Resources: Balancing Rights and Duties (Cambridge: Cambridge University Press, 1997) at 82118.

126 See e.g., Subedi, supra note 12 at 165-167; Puvimanasinghe, supra note 12 at 170-173; Sornarajah, supra note 5 at 109-111; Sands, supra note 122 at 1057.

127 Article 9(g) (emphasis added).

128 Tan, Alan Khee-Jin, “Forest Fires: State Responsibility and International Liability” (1999) 48 I.C.L.Q. 826 at 833.

129 Tan (2005), supra note 107 at 663.

130 Hirsch, supra note 12 at 173-174; Puvimanasinghe, supra note 12 at 108-116; Sornarajah, supra note 5 at 230-231; Schrijver, supra note 125 at 322-336.

131 Article 1(9) of the ASEAN Charter.

132 ASCC Blueprint, supra note 1 03 at paras. 5, 9.

133 Principle 4 of the 1992 Rio Declaration on Environment and Development, UN Doc. A/CONF.151/26 (vol. I).

134 2009 Joint Declaration on the Attainment of the Millennium Development Goals, online: <http://www.aseansec.org/22334.htm> at para. 2.

135 See Tay, Simon S.C. & Tan, Iris, “Sustainable Development and Foreign Direct Investment: The Emerging Paradigm in Asia” in Zarsky, Lyuba, ed., International Investment for Sustainable Development: Balancing Rights and Rewards (Sterling, VA: Earthscan, 2005) 97 at 112115.

136 Cf. Puvimanasinghe, supra note 12 at 97-98, who argues that “[a]lthough the notion of sustainable development emerged from international environmental law, it is evolving as a concept encapsulating the three-dimensional relationship of economic development, environment and human rights.”

137 Declaration of ASEAN Concord II, supra note 102.

138 Cf. Mulqueeny, Kala K., “Regionalism, Economic Integration and Legalisation in ASEAN: What Space for Environmental Sustainability?” (2004) 8 Asia Pac. J. Envtl L. 5; Zhang, Ruosi, “Economic Integration and Environmental Protection in the Asia Pacific” (2001) 6 Asia Pac. J. Envtl L. 215 (both arguing that ASEAN has tended to focus on trade/investment liberalization and regional economic integration, while neglecting the development of institutional safeguards for environmental sustainability and protection).

139 Article 1 of the ACIA.

140 ASCC Blueprint, supra note 103 at 15, para. 32.

141 Pursuant to Art. 31(1) of the VCLT, supra note 66.

142 ACIA, Art. 17(1), which deals with environmental measures, is similar to the ‘general exceptions’ clauses in other IIAs, like the Energy Charter Treaty, Art. 24, and the Canadian Model BIT, Art. 10, online: <http://www.international.gc.ca/trade-agreements-accords-commerciaux/assets/pdfs/2004-FIPA-model-en.pdf>.

143 On the various criteria advanced by arbitral tribunals for determining when an ‘indirect expropriation’ has occurred, see generally, August Reinisch, “Expropriation” in Muchlinski, Ortino & Schreuer, supra note 12 at 420-451; Dolzer & Schreuer, supra note 38 at 92-115; OECD, International Investment Law: A Changing Landscape (Paris: OECD, 2005) at 53-70 (“A Changing Landscape”).

144 ACIA, Art. 14. On the potential tensions between environmental regulations and the current expansive rules on expropriation and compensation, see e.g., Schneiderman, supra note 1 1 at 46-68; Been & Beauvais, supra note 12 at 59-86; Wälde, Thomas & Kolo, Abba, “Environmental Regulation, Investment Protection and ‘Regulatory Taking’ in International Law” (2001) 50 I.C.L.Q. 811 at 824825.

145 Tienhaara, Kyla, “What You Don't Know Can Hurt You: Investor-State Disputes and the Protection of the Environment in Developing Countries” (2006) 6:4Global Environmental Politics 73 at 8587; Miles, Kate, “International Investment Law and Climate Change: Issues in the Transition to a Low Carbon World”, Society of International Economic Law, Working Paper No. 27/08 (2 July 2008), online: <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1154588> at 2226; Gross, Stephen, “BITs, Non-NAFTA MITs and Host-State Regulatory Freedom—An Indonesian Case Study” (2003) 24 Mich. J. Int'l L. 894 at 954; Been & Beauvais, supra note 12 at 132-135.

146 Tienhaara, ibid. at 88-96; Gross, ibid. at 894-895.

147 Tienhaara, ibid. at 92-93; Gross, ibid. at 894.

148 Miles, supra note 145 at 16; Tienhaara, supra note 145 at 87; Been & Beauvais, supra note 12 at 135.

149 Dolzer, Rudolf, “Indirect Expropriations: New Developments?” (2002) 11 Env. L.J. 64 at 79. See also Reinisch, “Expropriation”, supra note 143 at 444-447. For a statement of the ‘sole effect’ doctrine in arbitral jurisprudence, see e.g., Tippetts v. TAMS-AFFA Consulting Engineers of Iran (1984) 6 Cl. Trib. 219.

150 Metalclad Corporation v. United Mexican States, Tribunal Decision, Case No. ARB(AF)/97/1 (30 August 2000) (“Metalclad”).

151 Metalclad, ibid. at para. 103 (emphasis added).

152 Compañía del Desarrollo de Santa Elena, S.A. v. Costa Rica, Award, ICSID Case No. ARB/96/1 (17 February 2000) (“Santa Elena”).

153 Santa Elena, ibid. at para. 71 (emphasis added).

154 See e.g., Sornarajah, supra note 5 at 396-400; Wälde & Kolo, supra note 144 at 814.

155 Hirsch, supra note 12 at 168-170, 174; Sornarajah, supra note 5 at 472.

156 Metalclad, supra note 150; Tippetts, supra note 149; Pope & Talbot Inc. v. Canada, Interim Award (NAFTA/UNCITRAL, 26 June 2000) at para. 99.

157 Cf. Gross, supra note 145 at 941-942, discussing whether the Indonesian ban on open-pit mining would be ‘equivalent to an expropriation’. Gross rejects this contention, since the ban on open-pit mining did not eliminate the mining companies' rights to extract minerals; it merely restricted the manner in which that right could be invoked (ibid. at 952).

158 Annex 2, para. 3 of the ACIA.

159 ACIA, Annex 2, para. 4. The rules on ‘indirect expropriation’ in Annex 2 substantially mirror the tribunal's holding in Methanex Corporation v. U.S.A., Final Award on Jurisdiction and Merits (3 August 2005), in Part IV Chapter D, at para. 7.

160 NAFTA Chapter 11, Art. 1114(1) states that governmental measures “undertaken in a manner sensitive to environmental concerns” will not be prevented if “otherwise consistent with [Chapter 11]”. The latter qualification arguably means that Article 1114(1) is not a true exception to the other provisions in NAFTA Chapter 11: see Kinnear, Bjorklund & Hannaford, supra note 92, “Art. 1114” at 5; Been & Beauvais, supra note 12 at 44.

161 U.S. Model BIT, Annex 2 at para. 4(b), which is practically identical to the ACIA's proviso on ‘indirect expropriation’, save that it acknowledges “rare circumstances” in which a regulatory action which satisfies all the criteria set out in the proviso may nevertheless be considered to be an indirect expropriation.

162 Canadian Model BIT, supra note 142, Annex B.13(1) at 21, which is similar to the proviso in the U.S. Model BIT, except for a clarification that “rare circumstances” may include instances “when a measure or series of measures are so severe in the light of their purpose that they cannot be reasonably viewed as having been adopted and applied in good faith”.

163 International Labour Organization, Labour and Social Trends in ASEAN 2008: Driving Competitiveness and Prosperity with Decent Work (Bangkok: ILO, 2008) at 14.

164 In the ASEAN context, see e.g., Ragayah Haji Mat Zin, supra note 95 at 100-101. For an empirical study showing that FDI inflows result in inferior jobs with low wages, see Mehmet, Ozay, “Race to the Bottom: The Impact of Globalization on Labor Markets—A Review of Empirical and Theoretical Evidence” in Ghosh, B.N. & Guven, Halil M., eds., Globalization and the Third World: A Study of Negative Consequences (New York: Palgrave Macmillan, 2006) 148.

165 ILO (2008), supra note 163 at 65; Tsai, Pan-Long & Lung-Tsay, Ching, “Foreign Direct Investment and International Labour Migration in Economic Development: Indonesia, Malaysia, Philippines, Thailand” in Ananta, Aris & Arifin, Evi Nurvidya, eds., International Migration in Southeast Asia (Singapore: ISEAS Publications, 2004) 94.

166 See e.g., Tamagno, Edward, “Strengthening Social Protection for ASEAN Migrant Workers through Social Security Agreements”, ILO Asian Regional Programme on Governance of Labour Migration”, Working Paper No. 10 (Bangkok: ILO, 2008).

167 On the tensions between labour law and economic globalization, see e.g., Perulli, Adalberto, “Globalisation and Social Rights” in Benedek, Wolfgang, Feyter, Koen de & Marrellaat, Fabrizio, eds., Economic Globalisation and Human Rights (Cambridge: Cambridge University Press, 2007) 93 at 97.

168 ASCC Blueprint, supra note 103 at para. 26.

169 Ibid. at para. 28.

170 ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers, adopted by the Heads of State/Governments on 13 January 2007, online: <http://www.aseansec.org/19264.htm> (“DRMW”).

171 Ibid., Preamble.

172 Ibid. at para. 8.

173 Ibid. at para. 9.

174 See the Statement of the Establishment of the ASEAN Committee on the Implementation of the ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers, adopted by the ASEAN Foreign Ministers in Manila, the Philippines on 30 July 2007, online: <http://www.aseansec.org/20768.htm>.

175 On the “ASEAN Way”, see supra note 1 1 5 and the main text accompanying.

176 Joint Communiqué of the Nineteenth ASEAN Labour Ministers Meeting held on 5 May 2006, online: <http://www.aseansec.org/18400.pdf> at para. 2. For criticisms of ASEAN's relative inaction on labour rights and migrant workers' rights, see Chavez, Jenina Joy, “Social Policy in ASEAN: The Prospects for Integrating Migrant Labour Rights and Protection” (2007) 7 Global Social Policy 358 at 364372.

177 DRMW, supra note 170 at paras. 5, 11.

178 See Alston, Philip, “Labour Rights as Human Rights: The Not So Happy State of the Art” in Alston, Philip, ed., Labour Rights as Human Rights (New York: Oxford University Press, 2005) 1 at 5.

179 Severino, supra note 91 at 35-37; Tay (2001), supra note 115 at 249-250; Soesastro, Hadi, “ASEAN in 2030: The Long View” in Tay, Simon S.C., Estanislao, Jesus P. & Soesastro, Hadi, eds., Reinventing ASEAN (Singapore: Institute of Southeast Asian Studies, 2001) 273 at 278281.

180 On the possible role of regional frameworks in regulating the activity of transnational business actors as regards labour and workplace issues, see e.g., Bercusson, Brian & Estlund, Cynthia, “Regulating Labour in the Wake of Globalisation: New Challenges, New Institutions” in Bercusson, Brian & Estlund, Cynthia, eds., Regulating Labour in the Wake of Globalisation: New Challenges, New Institutions (Oregon: Hart Publishing, 2008) 1 at 912; Charnovitz, Steve, “The Labor Dimension of the Emerging Free Trade Area of the Americas” in Alston, Philip, ed., Labour Rights as Human Rights (New York: Oxford University Press, 2005) 141 at 161.

181 Perulli, supra note 167 at 100-102; D'Antona, Massimo, “Labour Law at the Century's End: An Identity Crisis?” in Conaghan, Joanne, Fischl, Richard Michael & Klare, Karl, eds., Labour Law in an Era of Globalization (Oxford: Oxford University Press, 2002) 31 at 3940.

182 Perulli, ibid. at 107-108.

183 See Art. 1-4 of the Cooperation Agreement Between the ASEAN Secretariat and the International Labour Office, signed in Geneva, Switzerland on 20 March 2007, online: <http://www.aseansec.org/ILO.pdf>.

184 See the Preamble of the DRMW, supra note 170: such international human rights agreements include the Universal Declaration on Human Rights, as well as “other appropriate international instruments which all the ASEAN Member Countries have acceded to, in order to safeguard the human rights and fundamental freedoms of individuals”.

185 See e.g., DRMW, Art. 5.

186 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, A/RES/45/158 (18 December 1990) (“ICMWR”). Only three ASEAN Members are signatories (Cambodia, Indonesia, and the Philippines), and only one (the Philippines) has ratified the Convention, according to the UN treaty database. See online: <http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-13&chapter=4&lang=en> (accessed on 3 January 2011).

187 The two legally-binding ILO agreements relating to migrant workers are the Convention Concerning Migration for Employment, No. 97 of 1949 (“C97”), and the Convention Concerning Migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers, No. 143 of 1975 (“C143”). Among ASEAN Members, C97 has been ratified by Malaysia Sabah and the Philippines (http://www.ilo.org/ilolex/cgi-lex/ratifce.pl?C097), while C143 has been ratified by the Philippines (http://www.ilo.org/ilolex/cgi-lex/ratifce.pnC143) (accessed on 3 January 2011).

188 For a review of the protection of migrant workers' rights afforded by the ILO and the UN frameworks, see Cholewinski, Ryszard, “International Labour Law and the Protection of Migrant Workers: Revitalizing the Agenda in the Era of Globalization” in Craig, John D.R. & Lynk, S. Michael, eds., Globalization and the Future of Labour Law (Cambridge: Cambridge University Press, 2006) 409 at 411416.

189 DRMW, supra at para. 9.

190 Namely, Art. 16(2) of the ICMWR, supra note 186, which recognizes the rights of migrant workers and their families to “effective protection by the State against violence, physical injury, threats and intimidation”.

191 Cf. Peterson, Luke Eric & Gray, Kevin R., “International Human Rights in Bilateral Investment Treaties and in Investment Treaty Arbitration” (Winnipeg: International Institute for Sustainable Development, 2003) at 89, noting that BITs generally contain no references to international human rights obligations, and no substantive clauses on human rights.

192 ACIA, Annex 2 at para. 4. However, it is arguable that “labour rights” or “human rights” count as a “legitimate public welfare objective” which is ejusdem generis with the expressly-listed objectives: see Jasper Krommendijk & John Morijn, “‘Proportional’ by What Measure(s)? Balancing Investor Interests and Human Rights by Way of Applying the Proportionality Principle in Investor-State Arbitration” in Dupuy, Pierre-Marie, Petersmann, Enrst-Ulrich & Francioni, Francesco, eds., Human Rights and International Investment Law and Arbitration (Oxford: Oxford University Press, 2009) 422 at 430431.

193 Express provisions on labour rights may also be found in model IIAs like the International Institute for Sustainable Development's Model International Agreement on Investment for Sustainable Development (e.g., Art. 14(C)-(D), 20, 21(B)) and Norway's draft model BIT (now abandoned). I thank the anonymous referee for highlighting this to me.

194 Article 13 of the U.S. Model BIT.

195 North American Agreement on Labor Cooperation, signed on 13 September 1993, online: <http://new.naalc.org/naalc/naalc-full-text.htm> (“NAALC”).

196 For more detailed discussions of the NAALC's provisions and enforcement mechanisms, see e.g., Compa, Lance, “Labour Rights in the FTAA” in Craig, John D.R. & Lynk, S. Michael, eds., Globalization and the Future of Labour Law (Cambridge: Cambridge University Press, 2006) 245 at 250252; Pomeroy, Laura Okin, “The Labor Side Agreement under the NAFTA: Analysis of its Failure to Include Strong Enforcement Provisions and Recommendations for Future Labor Agreements Negotiated with Developing Countries” (1996) 29 George Washington J. Int'l L. & Econs. 769 at 778784.

197 Charnovitz, supra note 180 at 155-157; Pomeroy, ibid. at 791-793.

198 For analyses of the investment arbitration cases which have considered human rights issues, see e.g., James Fry, D., “International Human Rights Law in Investment Arbitration: Evidence of International Law's Utility” (2007) 18 Duke J. Comp. & Int'l L. 77 at 100103; Kriebaum, Ursula, “Privatizing Human Rights: The Interface between International Investment Protection and Human Rights” in Reinisch, August & Kriebaum, Ursula, eds., The Law of International Relations: Liber Amicorum Hanspeter Neuhold (Utrecht: Eleven International Publishing, 2007) 165 at 186188; Peterson & Gray, supra note 191 at 22-32.

199 Biloune and Marine Drive Complex Ltd. v. Government of Ghana, Award on Jurisdiction and Liability (27 October 1989), 95 I.L.R. 183(“Biloune v. Ghana”).

200 Ibid. at 202-203 (emphasis added).

201 Fry, supra note 198 at 102; Kriebaum, supra note 198 at 187.

202 Perulli, supra note 167 at 182.

203 For a discussion of some representative cases, see Hirsch, supra note 12 at 163-173.

204 S.D. Myers Inc. v. Government of Canada, Partial Award, (2001) 40 I.L.M. 1408 (13 November 2000) (“S.D. Myers”).

205 Ibid. at paras. 213, 216-221. The treaties considered by the tribunal were the Basel Convention on the Control of Transboundary Movement of Hazardous Wastes and their Disposal, the U.S.-Canada Transboundary Agreement, and the North American Agreement on Environmental Cooperation.

206 See also Hirsch, supra note 12 at 173-174, who also discusses SPP (Middle East) Ltd. v. Egypt, Award, ICSID Case No. ARB/84/3 (20 May 1992) (“SPP v. Egypt”) and Técnicas Medioambientales Tecmed, S.A. v. United Mexican States, Award, ICSID Case No. ARB/00/2 (29 May 2003) (“Tecmed”).

207 S.D. Myers, supra note 204 at para. 214, where the tribunal stated: “Annex 104 [of NAFTA] provided that the Basel Convention would have priority if and when it was ratified by the NAFTA Parties.” It may be argued that the tribunal's formalist approach is defensible only within the specific context of NAFTA Article 104 and Annex 104.1, which precisely and exhaustively list the environmental and conservation agreements that prevail over NAFTA.

208 SPP v. Egypt, supra note 206.

209 Ibid. at para. 154.

210 Yaung Chi Oo, supra note 48 at para. 23.

211 Ibid. at paras. 24, 80, where the tribunal stated that the AIA was “capable of operating in its own terms”.

212 Dolzer & Schreuer, supra note 38 at 3-4; Sornarajah, supra note 5 at 69-70.

213 For further discussions of the host State's obligation under the FET clause to maintain a stable, predictable and transparent regulatory framework, see e.g., Dolzer & Schreuer, supra note 38 at 133-140; Todd Grierson-Weiler & Ian A. Laird, “Standards of Treatment” in Muchlinski, Ortino & Schreuer, supra note 12 at 277-283; OECD, A Changing Landscape, supra note 143 at 118-123; Schreuer, Christoph, “Fair and Equitable Treatment in Arbitral Practice” (2005) 6:3J. World Trade & Investment 357 at 374380.

214 Metalclad, supra note 150 at para. 99.

215 Tecmed v. Mexico, supra note 206.

216 Tecmed, ibid. at para. 154.

217 Tecmed, ibid (emphasis added).

218 Cf. Dolzer, Rudolf, “Fair and Equitable Treatment: A Key Standard in Investment Treaties” (2005) 39 Int'l Law 87 at 104, pointing out that the FET standard, as articulated in arbitral practice, is effectively a “chronologically anchoring” of the foreign investor's rights to the preinvestment state of the law in the host State at the time the investment was made.

219 Sornarajah, supra note 5 at 355; Schneiderman, supra note 11 at 97-100.

220 Schreuer, supra note 213 at 380-381.

221 See the argument on ‘comprehensive regionalization’ presented at the beginning of Part III above. It is unlikely, however, that regionalism or regionalization “would exempt States within a certain geographical area from the binding force of an otherwise universal rule or principle”: see International Law Commission, Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law: Report of the Study Group of the International Law Commission, finalized by Koskenniemi, Martti, A/CN.4/L.682 (13 April 2006) at paras. 211-215. For an argument against considering international investment law as a ‘self-contained’ regime of international law, see Aaken, Anne van, “Fragmentation of International Law: The Case of International Investment Protection”, University of St. Gallen Law School, Law and Economics Research Paper Series, Working Paper No. 2008-1, online: <http://ssrn.com/abstract=1097529> at 2028.

222 I take the notion of regulatory or mediating principles from Hirsch, supra note 1 2 at 1 55-1 57, who identifies two sets of ‘regulatory rules’ (from general international law and from international investment jurisprudence) which can be applied to resolve conflicts between investment and noninvestment obligations.

223 VCLT, supra note 66, Art. 31(1). On the application of the VCLT by investment tribunals, see Schreuer, Christoph, “Diversity and Harmonization of Treaty Interpretation in Investment Arbitration”, online: <http://www.univie.ac.at/intlaw/pdf/cspubl_85.pdf>.

224 SGS Société Générale de Surveillance S.A. v. The Philippines, Decision of the Tribunal on Objections to Jurisdiction, ICSID Case No. ARB/02/6 (29 January 2004) at para. 116.

225 Noble Ventures, Inc. v. Romania, Award, ICSID Case No. ARB/01/11 (5 October 2005) at para. 52.

226 Dolzer & Schreuer, supra note 38 at 32-33; Van Harten, supra note 11 at 136-138; Schreuer, supra note 223 at 5-6; Dolzer & Stevens, supra note 38 at 17.

227 Van Harten, supra note 11 at 139. Against this ‘investor rights’ approach to investment treaty arbitration, Van Harten defends a ‘public law’ framework of interpretation, under which tribunals strive to be cognizant of wider regulatory concerns (ibid. at 144).

228 Dolzer & Schreuer, supra note 38, arguing that the motivation underlying IIAs is that the host State and the foreign investor share a joint purpose. See also Wälde, Thomas W., “Interpreting Investment Treaties: Experiences and Examples” in Binder, Christinaet al., eds., International Investment Law for the 21st Century: Essays in Honour of Christoph Schreuer (Oxford: Oxford University Press, 2009) 724 at 764.

229 Van Harten, supra note 11 at 136-138; Wälde, ibid. at 764; Sornarajah, supra note 5 at 469-473; Dolzer & Stevens, supra note 38 at 17-18.

230 S.D. Myers, supra note 204 at paras. 196 and 204-219.

231 S.D. Myers, supra note 204 at para. 247.

232 For discussions of the proportionality principle as applied by arbitral tribunals interpreting the FET clause, see e.g., Newcombe, Andrew & Paradell, Lluis, Law and Practice of Investment Treaties: Standards of Treatment (Alphen aan den Rijn: Kluwer Law International, 2009) at 363366; Xiuli, Han, “The Application of the Principle of Proportionality in Tecmed v. Mexico” (2007) 6 Chinese J. Int'l L. 635 at 641646; OECD, A Changing Landscape, supra note 143 at 67.

233 For arguments to similar effect about the utility of the proportionality principle in balancing competing interests, see e.g., Schneiderman, supra note 11 at 102-106; Krommendijk & Morijn, supra note 192 at 438-446; Han, supra 232 at 643-644; Kriebaum, supra note 198 at 184; Wälde & Kolo, supra note 144 at 827-835.

234 Tecmed, supra note 206 at para. 122. See also S.D. Myers, supra note 204 at paras. 215, 221, where it was held (pursuant to NAFTA, Art. 104(1)) that Canada's measures, even if mandated by its international environmental obligations, had to be the least restrictive methods of those available for achieving its chosen level of environmental protection while adhering to its trade-and investment-related obligations under NAFTA.

235 See Han, supra note 232 at 648, citing Coe, Jack J. Jr., “Emerging Dilemmas in International Economic Arbitration: The State of Investor-State Arbitration—Some Reflections on Professor Brower's Plea for Sensible Principles” (2005) 20 Am. U. Int'l L. Rev. 929 at 943944.

236 A State measure, in order to fall within an Art. 17 general exception, must not constitute “arbitrary or unjustified discrimination”, or a “disguised restriction” on foreign investment; furthermore, measures imposed to maintain public order, to protect public morals, or to protect human, animal or plant life or health must be “necessary” to achieve those respective purposes. A footnote to ACIA, Art. 17(1) further clarifies: “The public order exception may be invoked by a Member State only where a genuine and sufficiently serious threat is posed to one of the fundamental interests of society.” (emphasis added)

237 Schill, supra note 4 at 375-376; Van Harten, supra note 11 at 144-145.

238 Tecmed, supra note 206 at para. 122. See also S.D. Myers, supra note 204 at paras. 261, 263.

239 See ASEAN Charter, Art. 2(2), stating (inter alia) that ASEAN and its Member States shall abide by the principles of “respect for the independence, sovereignty, territorial integrity and national identity of all ASEAN Member States” and “non-interference in the internal affairs of ASEAN Member States”; and Art. 3, stating that ASEAN is an “inter-governmental organisation”. For a discussion of ASEAN's ‘doctrine’ of non-interference as applied to several regional issues, see Severino, supra note 91, c. 3.

240 ASCC Blueprint, supra note 103 at para. 4.

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