Aus-UK FTA on investment - while the treaty maintains investment protections, private direct enforcement via investor-State arbitration is out.
An interesting add on secondary sanctions that can impact firms abroad.
The question to ask - will the UK entertain ISDS when it negotiates with a lower-income, capital-importing country. I think the next few on the docket are all with high-income countries. But note, Japan and the EU/MS still want some private direct enforcement in.
Also interesting - new chapter on Development - which mirrors information sharing and cooperation. Would have been nice to see this be the focus for the investment protections.
General exceptions will apply to the whole investment chapter. Interesting to see then how precisely drafted the commitments against unfair and discriminatory treatment are. Also getting a hint we're seeing some variance in this next generation of drafting.
One deal does not signal a shift in overall thinking away from #ISDS. Canada agreed to remove ISDS w/ the US in the USMCA. Its 2021 model treaty keeps private direct enforcement in, while stressing innovations and supporting #MultInvCourt.

2021 FIPA:…

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More from @loyaladvisor

30 Mar
When we think of #ISDS, there seems to be no shortage of heated disputes regarding the legitimacy of this dispute settlement mechanism as a cog in the investment treaty regime. In the US, US politicians like Elizabeth Warren have spoken out fervently against ISDS.
The Walloons launched an assault against CETA. And as @vonderburchard reported in 2016, this was largely due to ISDS.…
But what about the perspective of African nations towards the investment treaty regime and, in particular, ISDS? This is a complex question. As Ian Solomon notes, “any aggregate portrait of the continent obscures its heterogeneity”.…
Read 25 tweets
24 Mar
What is China's Belt and Road Initiative (BRI)? To understand China's developmental strategy, its important to consider both China's unique economic structure and its infrastructure network on its own terms, not just as a threat to the United States or legal internationalism.
I taught China's developmental strategy last week. My students began by reading Mark Wu's China Inc. Wu's work is so clear in showing that this is not just about Chinese state capitalism, bur a complex network involving private firms & Party-state control.…
Wu explains how China Inc. came after China's accession to the WTO. I think Wu's work is crucial to understand, especially considering the WTO's centrality to global economic governance. I'd love to have seen Wu follow up considering the digital silk road (he wrote it in 2015).
Read 20 tweets
4 Mar
My class today looked at foreign investment and the goal of development. The initial focus was twofold: first, the HOW, WHY, and WHAT countries sign up for when they conclude investment treaties; and second, the impacts of investment treaties on governance & development.
The groundwork was laid out by @laugepoulsen @JBonnitcha @WaibelM09 great book, The Political Economy of the Investment Treaty Regime. But I paired the introduction and review of the politics of developing countries with a case study on South Africa.
We started with @laugepoulsen article (which is a shortened piece from his book). We discussed the history in South Africa and elaborated on the experience of officials to negotiate these treaties,…
Read 13 tweets
3 Mar
Finally able to give serious read @AntheaERoberts @taylor__stjohn recent sum-up of UNCITRAL WGIII talks (TL/DR: take up the pen). The desire to stop high level talks and move to details is a great way to move forward; analogy is to writing - at some point you need to just start.
What is very interesting is the marriage of 2 points by these scholars: 1) EU&MS/Switzerland proposal for text via informal sessions before taking text to broader group; 2) focusing next time on "WHO texts as well as HOW and WHEN that texting occurs."
Its inescapable to compare to WTO struggle to cooperate multilaterally and urgent questions on legality of joint initiatives plus longstanding concerns of developing countries with informal, green room talks. I suspect we will see similar concerns rise up in investment context.
Read 9 tweets
8 Oct 20
This is an important point from @geoffreygertz and one which @harlangcohen and I have long discussed about the internal debates that led to the creation of USTR. And I hope to support Geoff's ridiculously sharp thread by reflecting on agencies' impact on the trade/security divide
International trading rules structure national security as an exception to rules of non-discrimination and trade liberalisation & this emerged as some saw trade = peace. Security exceptions were important, albeit dangerous for the multilateral trading system = rare formal use.
But the absence of invocation over time never eradicated the significance of national security as a justification or element of international economic relations between countries. As economist Thomas Schelling remarked in 1971, ‘trade policy is national security policy.'
Read 9 tweets
29 Jan 20
A thread on "Trade Multilateralism and U.S. National Security: The Making of the GATT Security Exceptions", especially for those curious about my big picture thoughts on this project. Michigan J Int'l Law has it up here:…
My intensive archival work into the construction of the security exceptions illuminates, but also complicates, current debates about the interpretation of article XXI GATT, which is relevant for several disputes at the WTO.
My work provides new evidence into the making of the International Trade Organization (ITO), the original post-WW2 multilateral trade institution, through investigation of the internal debates among the lead architects of the exceptions and the ITO preparatory materials.
Read 8 tweets

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