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- Title
"THE CURIOUS CASE OF ISDS ARBITRATION INVOLVING AUSTRALIA AND NEW ZEALAND".
- Authors
KAWHARU, AMOKURA; NOTTAGE, LUKE
- Abstract
Criticism of investor-state dispute settlement (ISDS) has intensified as the number of cases and the range of affected states have grown. This has prompted a range of reform initiatives aimed at both ISDS and the investment treaty system more generally. Given their close ties and common interests, Australia and New Zealand have the potential to work together to promote bottom-up reform to ISDS. This paper examines their experiences with ISDS cases, including reporting about ISDS in local media, and asks to what extent these experiences may impact on their ISDS policies. We find that the first treaty-based ISDS case against Australia did generate "availability bias" against ISDS, underpinning a shift in policy and public perceptions, although media coverage has waned. By contrast, New Zealand's early experience as respondent in a contract-based claim has been largely overlooked in debates about ISDS. There is also little evidence yet to indicate that either potential additional inbound treaty-based ISDS claims against Australia or outbound ISDS claims by Australian investors have influenced overall policy or even drafting on specific issues, although New Zealand's recent experience shows how easily ISDS can resurface as a topical issue with a change in government. We suggest that a "status quo bias" in favour of path dependency has been a stronger influence than actual experiences with ISDS cases, although such dependency may be weakening for New Zealand at least.
- Subjects
INVESTOR-state arbitration; FOREIGN investment laws; DISPUTE resolution
- Publication
University of Western Australia Law Review, 2018, Vol 44, Issue 2, p32
- ISSN
0042-0328
- Publication type
Article