[This event is organised by MEI’s Transsystemic Law Research Cluster as part of their monthly internal seminar series.]
Abstract
Since the US’ withdrawal from the TPP, the remaining 11 States have decided to move forward with a slightly revised CPTPP. Our paper investigates the impact of the US’ departure and its future implications for the investment chapters of Asian FTAs. We explore three central queries: (i) whether the gap left by the US’ departure will provide a propitious space for Asian States to coalesce around a common trade vision, or build regional FTAs around a distinctly ‘Asian’ way of approaching ISDS, specifically, and international law more generally; (ii) whether key Asian States – e.g. China and India – will assume a more active role as ‘rule-makers’, or confine themselves to the passive perspective of ‘rule-takers’ in designing or finalising the investment chapters in new regional trade deals; and (iii) whether the body of post-NAFTA jurisprudence and resulting shifts in treaty drafting practice will inform this process and, if so, what this influence will reveal about the US’ reach in Asian treaty-making during the Trump Administration, and beyond. Our thesis is that the form and content of the CPTPP’s procedural and substantive investment provisions will continue to bear the mark of American influence despite the US’ absence, and that it will continue to serve as a template for ISDS provisions in Asia-relevant FTAs, as seen in the draft RCEP. This prediction is grounded in the CPTPP investment chapter’s origins; namely, in its embodiment of many hard lessons learned from post-NAFTA practice. The precise contours of the CPTPP’s investment chapter, and particularly its ISDS mechanism, are important for assessing current prospects and limits of trade and investment mega-regionals.
Our discussion begins with a survey of the political climate in which multilateral trade and investment currently operate, with a particular focus on the US’ approach to these issues and its impact on the CPTPP and beyond. We then turn to the ‘Asian values’ debate, critically assessing its potential as a framing theme, and finding it impossible to glean and cobble together a pattern of discernible values from this diverse region with respect to ISDS, beyond those embodied by individual States or mini regional groupings. Absent such ‘Asian values’, and building on the hypothesis that US influence remains a key driver in the investment chapters of most recent FTAs, we identify enduring lessons from the post-NAFTA practice that have been continually evolving through US-led shifts in treaty drafting practice. We then compare and contrast the CPTPP’s and RCEP’s investment chapters, which reveal word-for-word similarities, as well as India in RCEP as a key proponent of strengthening States’ right to regulate and narrowing its consent to be sued by investors. A brief case-study on China’s and India’s investment treaty practice is then undertaken to test whether these two States also reflect the general ‘auto-pilot’ adoption of US-led ideas, or whether they exhibit more ‘rule-making’ tendencies in their existing FTAs with other countries. Finally, we look beyond CPTPP and RCEP to possible pathways for Asian States to develop shared understandings specific to their region and strategic interests.
About the Speaker(s)
Vincent-Joël Proulx is Assistant Professor at the National University of Singapore’s Faculty of Law, where he teaches and researches primarily in the areas of international law, international dispute settlement, and comparative law. Previously, he served a three-year term as Special Assistant to the President of the International Court of Justice (ICJ). His past appointments also included serving as Legal Officer to the Vice-President of the ICJ, Law Clerk at the Court of Appeal for Ontario and ICJ, Québec Scholar at the Woodrow Wilson International Center for Scholars, and Secrétaire-rédacteur at the last four sessions of the Institut de Droit International. Vincent-Joël is the author of Institutionalizing State Responsibility: Global Security and UN Organs (OUP 2016) and Transnational Terrorism and State Accountability: A New Theory of Prevention (Hart 2012), for which he was awarded the 2014 Myres McDougal Prize for best book in Law, Science, and Policy by the Society of Policy Scientists. His contributions have also appeared in various journals, including the Leiden Journal of International Law, European Journal of International Law, Journal of International Dispute Settlement, Canadian Business Law Journal, and Les Cahiers de Propriété Intellectuelle. He holds LL.L. and LL.B. degrees (cum laude) from the University of Ottawa, an LL.M. from NYU School of Law, and a doctorate from McGill University, where he was recipient of several awards and scholarships. He was appointed Director of Studies for The Hague Academy of International Law 2022 winter session, and has served twice as invited faculty at the Singapore International Arbitration Academy (SIAA). He is called to the Ontario Bar (Canada) as Barrister and Solicitor.
Elsa Sardinha is a Research Associate at the National University of Singapore’s Centre for International Law (CIL) in the Investment Law & Policy and International Dispute Settlement streams. She has presented her sole-authored policy and legal analysis papers at over 20 international arbitration conferences in Canada, China, Germany, India, Italy, Korea, Philippines, Singapore, Spain, Switzerland, Taiwan, and the US, and has guest lectured at several leading law schools in Asia. She has several publications in The Law & Practice of International Courts and Tribunals, ICSID Review and Canadian Yearbook of International Law, among others. Elsa also assists arbitrator Chris Thomas QC as Practice Fellow on certain of his investor-state arbitrations and served as Tribunal Secretary in a Singapore International Arbitration Centre (SIAC) arbitration for Professor Lucy Reed. Prior to joining CIL, Elsa served as Legal Counsel at the London Court of International Arbitration and Permanent Court of Arbitration, and as Research Fellow at the Special Tribunal for Lebanon. She holds a B.A., LL.B. and Advanced LL.M. in Public International Law, and was recipient of several scholarships. After graduating from law school, she clerked at the Ontario Court of Appeal and went on to work as Litigation Associate at one of Canada’s largest law firms, Borden Ladner Gervais LLP. In light of her international arbitration experience concerning a range of industries in various arbitral fora, she was named to SIAC’s Reserve Panel of Arbitrators, and subsequently appointed as Sole Arbitrator. In February 2018, she was appointed by Canada to the NAFTA Chapter 19 (Trade Remedies) Roster for Dispute Settlement Panels, for a 10-year term. Elsa is qualified as a Barrister and Solicitor in Canada.
