Skip to main content Accessibility help
×
Home
Hostname: page-component-55597f9d44-jzjqj Total loading time: 0.227 Render date: 2022-08-13T03:58:30.315Z Has data issue: true Feature Flags: { "shouldUseShareProductTool": true, "shouldUseHypothesis": true, "isUnsiloEnabled": true, "useRatesEcommerce": false, "useNewApi": true } hasContentIssue true

4 - The Investment Chapter and ISDS in the CPTPP: Lessons from and for Southeast Asia

Published online by Cambridge University Press:  08 October 2021

Get access

Summary

Introduction

The Trans-Pacific Partnership (TPP) free trade agreement (FTA) was signed on 4 February 2016. Prior to and following the signing of the TPP, significant media and public attention focused on its investment chapter, especially the investor-state dispute settlement (ISDS) provisions. For example, one report asserted: “Indonesia could fall into bankruptcy if the biggest market in Southeast Asia [joins the TPP], which would allow investors to sue the government in international arbitration courts through investor-state dispute settlements” (Jakarta Post, 15 February 2016). Yet a considerable proportion of additional economic growth modelled from the TPP was expected to come from more foreign direct investment (FDI) generated by liberalization commitments in that FTA (Petri and Plummer 2016).

Ratification of the TPP fell into doubt following newly-elected President Trump's withdrawal of signature by the United States in January 2017. But on 8 March 2018, the other eleven signatories (including four Southeast Asian states) re-signed the Comprehensive and Progressive Trans-Pacific Partnership (CPTPP). It made minimal changes to the original TPP's investment chapter and its ISDS provisions as well as loosening the requirements for this FTA to come into effect. Accordingly, there are practical and theoretical lessons to be drawn from the investment chapter and ISDS provisions in the agreement. For example, why were the Southeast Asian countries involved agreeable to ISDS? As the second section of this chapter outlines, ISDS-backed investment treaty commitments are already widespread across the Asia Pacific region (Bath and Nottage 2020). They have been offered in FTAs and earlier standalone bilateral investment treaties (BITs) signed by Southeast Asian states, the option to promote FDI especially where host states lack domestic laws and courts meeting international standards, which are current TPP signatories as well as potential new partners.

Other countries in the region that showed some interest in the TPP, such as Thailand, the Philippines and Indonesia (Crockett 2016), have each been subjected to a few arbitration claims brought by foreign investors and these countries consequently reviewed their approach to investment treaties and ISDS. Yet, until the end of 2016, none of them, and indeed no Southeast Asian state, had ever had to pay out on an arbitral award where the host state's consent to international arbitration has been given through an investment treaty. Nor has any Southeast Asian state declared that it would eschew ISDS completely in future treaties.

Type
Chapter
Information
Publisher: ISEAS–Yusof Ishak Institute
Print publication year: 2021

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Save book to Kindle

To save this book to your Kindle, first ensure coreplatform@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Save book to Dropbox

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

Available formats
×