The tentative investment chapter of trans – pacific partnership agreement an analysis of theory and practice

HO CHI MINH CITY UNIVERSITY OF LAW MANAGING BOARD OF SPECIAL TRAINING PROGRAMS BACHELOR’S THESIS INTERNATIONAL LAW MAJOR THE TENTATIVE INVESTMENT CHAPTER OF TRANS – PACIFIC PARTNERSHIP AGREEMENT: AN ANALYSIS OF THEORY AND PRACTICE Student : VÕ THỊ HỒNG HẠNH Student ID : 1055010085 Class : CLC35 Supervisor : Dr LÊ THỊ ÁNH NGUYỆT HO CHI MINH CITY, 2014 AFFIRMATION I hereby declare that this thesis is my own work The figures used in the thesis are authentic The research results have not been published in any other work Ho Chi Minh City, July 2014 Võ Thị Hồng Hạnh TABLE OF CONTENTS ABBREVIATION INTRODUCTION CHAPTER 1: TRANS – PACIFIC PARTNERSHIP AGREEMENT AND ITS TENTATIVE INVESTMENT CHAPTER 1.1 Overview of the negotiation of Trans – Pacific Partnership Agreement 1.2 Features of Trans – Pacific Partnership Agreement as an International investment agreement 1.2.1 International investment agreement 1.2.2 Form of international investment agreement 1.2.3 Features of Trans – Pacific Partnership Agreement 1.3 Tentative investment chapter 10 1.3.1 Tentative substantive provisions 10 1.3.1.1 Terminology of investment 10 1.3.1.2 Minimum standard of treatment 14 1.3.1.3 Expropriation 18 1.3.2 Investor – state dispute settlement mechanism 21 1.3.2.1 Who can be an investor? 22 1.3.2.2 Whose measures constitute to be conducts of State? 24 1.3.2.3 Admissible arbitration forum 25 CHAPTER 2: DISPUTES BETWEEN NATIONALS OF TPP NEGOTIATING PARTIES V OTHER COUNTRIES, AND OTHERS BETWEEN TPP NEGOTIATING PARTIES V NATIONALS OF OTHER COUNTRIES: CASE ANALYSIS 29 2.1 Cases between nationals of negotiating parties and other countries 29 2.1.1 ICSID case: Metalclad v Mexico 29 2.1.2 UNCITRAL case: Saluka v Czech Republic 33 2.2 Cases between negotiating countries and nationals of other countries 37 2.2.1 ICSID case: Tecmed v Mexico 37 2.2.2 UNCITRAL case: Philip Morris v Australia 40 2.3 Other case: CSOB v Slovak Republic 43 2.4 Michael McKenzie v Vietnam 46 CONCLUSION 50 BIBLIOGRAPHY APPENDIX ABBREVIATION BIT GATS ICSID IIA ISDS JBIT NAFTA OCED TPP TRIMs Bilateral Investment Treaty General Agreement on Trade in Services International Centre for Settlement of Investment Disputes International Investment Agreement Investor – State Dispute Settlement Japan – Vietnam Bilateral Investment Treaty North American Free Trade Agreement Organization for Economic Cooperation and Development Trans – Pacific Partnership Agreement Agreement on Trade – Related Investment Measures UBTA UNCITRAL U.S – Vietnam Bilateral Trade Agreement United Nations Commission on International Trade Law Rules of Arbitration UNCTAD WTO United Nations Conference on Trade and Development World Trade Organization INTRODUCTION The necessity of the thesis ―Trans – Pacific Partnership Agreement, in term of the ―21st century agreement‖ is now one of the most important regional trade agreements that Vietnam has joined the negotiation since 2008 Accordingly, Vietnam will have to commit deeper in all trade and trade – related issues in the agreement, including but not limiting to the investment sector On the other hand, since better market access will be provided and Vietnam is still regarded as a potential environment, it is predictable that Vietnam will receive large capital from foreign investors of 11 negotiating parties, for instance, U.S and Japan – two largest economies in the world Nevertheless, the foreign investment issue in the agreement will definitely bring more challenges for Vietnam In June, 2012, the leaked investment chapter shows that negotiating parties have agreed on including the investor – state dispute settlement mechanism which grants the foreign investors the right to directly sue host state to international arbitration This will possibly pose more risks to Vietnam in two aspects: (i) as a host state, Vietnam will be exposed to becoming Respondent being sued and (ii) domestic investors will have to compete more against foreign investors In practice, Vietnam has already been Respondent in international investment disputes In 2013, we have won first investment case against Michael McKenzie, a U.S national that invested in Binh Thuan province through a project named South Fork With this winning, Vietnam did not have to pay $3.7 billion which was the amount that the Claimant had requested However, previously in 2007, we lost our first case against Trinh Vinh Binh, a Dutch investor and had to pay damages Although the exact number is not public, it is reported that the Claimant requested us to compensate him $100 million These cases show us how great this mechanism may affect to Vietnam‘s responsibility in future when Vietnam breaches an obligation in the Trans – Pacific Partnership Agreement With all of the reasons above, the author chose to study about the investment issue in Trans – Pacific Partnership Agreement, particularly the tentative investment chapter The name of the thesis is thus ―The tentative investment chapter in Trans – Pacific Partnership Agreement: An analysis of theory and practice‖ Purpose and Delimitation of the Thesis The purpose of the thesis is to analyze features of the Trans – Pacific Agreement as a regional investment agreement, to study the important contents of the tentative investment chapter, and to study how these investment obligations may be interpreted in practice through cases resolved by the arbitral tribunals Because of time and limited material, the author will only analyze the commitments to investment in the investment chapter Besides, the scope of the study on substantive provisions in the tentative chapter will be limited to three particular articles on the terminology of investment, minimum standard of treatment and expropriation Thus, the analysis on practice will also extend to interpreting these obligations The status of the study Since the topic is new and the negotiation has not yet been completed, there is limited number of academic studies regards the tentative investment chapters In foreign language, C L Lim, Deborah Kay Elms and Patrick Low wrote the Chapter ―Trans - Pacific Partnership Agreement towards Innovations in Investment Rule Making‖ in the book “The Trans – Pacific Partnership: A request for a Twenty – first Century Trade Agreement” and published in 2012 Leon E Trakman wrote the journal article ―Resolving Investor-State Disputes under a Transpacific Partnership Agreement - What Lies Ahead?‖ and published in Transnational Dispute Management Journal in 2012 The organization Public Citizen also wrote the article ―Public Interest Analysis of Leaked Trans-Pacific Partnership (TPP) Investment Text‖ and published on its website in June 2012 These articles mostly discussed various concerns about a comprehensive investment chapter, especially in the effectiveness of the questionable investor – state dispute settlement In Vietnam, the most relevant study is the article ―Suggestion on negotiating Investment Chapter of TPP‖ of the WTO Center – Chamber of Commerce and Industry of Vietnam in January, 2013 There is hardly any thorough study about this investment chapter Based on my research, some old studies only concern about the investor – state dispute settlement mechanism For instance, the scientific research on “Settling investment dispute in accordance with ICSID – experience for Vietnam” at Ministry level in 2012 (Dr Nguyen Minh Hang is the monitor) analyzed mostly on the ICSID mechanism and its practice of settlement Methods In this thesis, the author has adopted mostly the method of analysis and synthesis in different parts to achieve the purpose Besides, the comparative method and data collection are also utilized in some parts to emphasize important issues Structure of the thesis The thesis contains two following chapters: Chapter 1: Trans – Pacific Partnership Agreement and its tentative investment chapter Chapter 2: Disputes between nationals of TPP negotiating parties v other countries, and others between TPP negotiating countries v nationals of other countries: case analysis CHAPTER 1: TRANS – PACIFIC PARTNERSHIP AGREEMENT AND ITS TENTATIVE INVESTMENT CHAPTER ―Know yourself, know your enemy‖ is a famous quotation telling people the method to survive in every battle: to know the positions of you and your enemy In this negotiation, the same is true; if we not want to be a small fish in a big pond, we have to have a minimum insight of the Trans – Pacific Partnership Agreement – the big playing field that Vietnam is participating From that perspective, this chapter will answer what features this trade agreement, particularly the tentative investment chapter may have To be more specific, the contents of this tentative chapter, i.e the substantive provisions and the investor – state dispute settlement mechanism will also be discussed 1.1 Overview of the negotiation of Trans – Pacific Partnership Agreement The current Trans – Pacific Partnership Agreement (hereinafter ―TPP‖) is developed from the original Trans - Pacific Strategic Economic Partnership (P4 Agreement) which was concluded between Brunei, Chile, New Zealand and Singapore in 2005 Interestingly, this Agreement includes a provision that allows the joining of other countries1 Thus, in 2009, the United States officially participated in all aspects of TPP negotiations From that time, the TPP negotiating parties are expanding to 12 countries throughout the Asia - Pacific region (Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States, and Vietnam), making TPP one of the most prominent agreements that will account for 40% GDP of the world Furthermore, the parties aim at creating TPP as a ―21st century agreement‖ that will announce all of the problems of modern era, Trans-Pacific Strategic Economic Partnership, Article 20.6 Clause says that ―This Agreement is open to accession on terms to be agreed among the Parties, by any APEC Economy or other State‖ The terms of such accession shall take into account the circumstances of that APEC Economy or other State, in particular with respect to timetables for liberalization‖ The text is available at including the promotion of innovation, economic growth and development as well as support the creation and retention of jobs Up till now, 20 formal rounds of negotiations have been held, in which the latest round is in July, 20142 The TPP is expected to be an ambitious agreement that governs a wide range of trade and trade – related issues, including industrial goods, agriculture, textiles, services, investment, intellectual property, the environment, small-and medium-sized enterprises and others Although the wrap up of negotiation was intended in 2012, such controversial issues like agriculture, intellectual property, services and investments have made that impossible Indeed, such a high - standard ―21st century‖ agreement has both benefits as well as stakes; therefore, a further thorough negotiation to balance the divergence in the level of development of parties is necessary 1.2 Features of Trans – Pacific Partnership Agreement as an International investment agreement It is interesting that all 12 countries of TPP are also members of World Trade Organization – the largest multilateral trade agreement - and other regional trade agreements Thus, there will be interactions between those treaties, especially when negotiating parties aim at creating TPP as a model for future free trade agreements with higher integration level To so, it must have features of the recent regional trade agreement that also includes an investment chapter, i.e to be a regional investment agreement and to have a ―ratchet‖ mechanism that ensures more liberalization in investment To that extent, it is said that TPP is a comprehensive WTO – plus commitment 1.2.1 International investment agreement International investment agreement (hereinafter ―IIA‖) can be generally referred as treaty with the aim of protecting, promoting, and liberalizing cross – border See more at 42 PM Asia asserted that it had legitimately expected Australia to comply with its international treaty obligations under Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs), Agreement on Technical Barriers to Trade (TBT) and Paris Convention for the Protection of Industrial Property However, by enacting the tobacco‘s plain packaging legislation, Australia was believed not to respect international obligation and thus, causing detriment to PM Asia‘s interest as well as its expectation On the other hand, the Respondent‘s sovereign right to regulate was not justified since the legislation failed to demonstrate its legitimate public purpose and there were also other alternatives harmless to Claimant‘s investment 107 Hence, the public health benefits of the regulation were disproportionate to the investment and resulted in an unfair and inequitable treatment to PM Asia b) Implication from the case This case adds to a number of lawsuits that ―attack‖ the government‘s regulation which is aimed at promoting social, health, environment and other public interests In this case, whether PM Asia had reasonable expectations or not must be questioned Although Australia is the first country to enact a plain packaging legislation, it is not the first one to introduce this concept108 Besides, at the time the Claimant formally acquired Philip Morris Australia, the plain packaging legislation had been proposed109 This would mean that foreign investor may initiate ISDS provision not for protection of its right, but rather for a mere economic interest Hence, ISDS mechanism - by providing a useful mechanism for foreign investor to seek 107 Philip Morris v Australia, supra note 104, par 7.7 See more at Peter D Isakoff (2013), ―Defining the Scope of Indirect Expropriation for International Investments‖, Global Business Law Review, p 207 – 208 The author observes that the concept was first recommended in 1989 in Toxic Substances Board of New Zealand‘s Health Department Similar proposals also occurred in other countries, such as France, Turkey, United Kingdom, etc 109 Philip Morris Asia Limited v The Commonwealth of Australia, UNCITRAL, Australia‘s Response to the Notice of Arbitration, Dec 21, 2011, par 5.c 108 43 compensations against host states - has been criticized for its ―chilling effect‖110 on the state‘s sovereign power Ironically, States may choose not to change its legislation if they not want investor to invoke arbitration claims111 Nowadays, the threat of being exposed to ISDS case is not only limited to developing countries but also to countries in upper level of economy like U.S and Canada112 On the other hand, the result of this case will not only affect Australia‘s decision to accept ISDS in TPP and in other future IIA 113 but also impact on other countries‘ consideration of the position of ISDS Importantly, when accepting ISDS in TPP, Vietnam will absolutely face the possibility of becoming Respondent in cases with investor from 11 countries in TPP 2.3 Other case: CSOB v Slovak Republic (a) Jurisdiction of ICSID Tribunal under ICSID Convention Whenever a suit is filed under the ICSID Convention, the Tribunal has to determine its jurisdiction with respect to the provisions under ICSID Convention114 and the BIT or any agreement that granted the right of parties to submit to ICSID The case displays this situation, especially the method of interpreting definition of “investment” and “national of another contracting party” In 1997, CSOB, a state – owned bank, filed a suit under ICSID arbitration, alleging that Slovak Republic had failed to cover the losses incurred by Slovak Collection Company, which constituted a breach of the Consolidation Agreement115 110 In the legal context, a chilling effect is the discouragement of the legitimate exercise of natural and legal rights by the threat of legal sanction See more at 111 Razeen Sappideen and Ling Ling He (2012), ―Investor-State Arbitration: The Roadmap from the Multilateral Agreement on Investment to the Trans-Pacific Partnership Agreement‖, Federal Law Review, 40 (2), p.219 112 M Sornarajah, supra note 43, at 80 – 81 113 See more Leon E Trakman, supra note 42, at 12 114 Article 25(1) of ICSID Convention states that ―The jurisdiction of the Centre shall extend to any legal dispute arising directly out of an investment, between a Contracting State (or any constituent subdivision or agency of a Contracting State designated to the Centre by that State) and a national of another Contracting State, which the parties to the dispute consent in writing to submit to the Centre.‖ 115 The fact of the dispute can be summarized as follow: CSOB was a Czech‘s state – owned commercial bank which concluded a Consolidation Agreement with the Slovak Republic and the Czech Republic Under the 44 The Tribunal first determined whether CSOB is a national of Czech Republic – a contracting party of ICSID Convention In Tribunal‘s view, the Convention extended its scope even to state – owned company, of course, with special conditions: ―…for purposes of the Convention a mixed economy company or governmentowned corporation should not be disqualified as a ‗national of another Contracting State‘ unless it is acting as an agent for the government or is discharging an essentially governmental function.‖116 In this case, CSOB was qualified as a national and investor from Czech Republic Although CSOB was assumed to act on behalf of the State in the international banking field, this did not necessarily establish that CSOB also discharged an essentially governmental function The key of determination was the nature of CSOB‘s activities117 The Tribunal found that those activities were more commercial rather than governmental in nature They emphasized on the effort of CSOB to “improve its balance and consolidate its financial position” by removing those non – performing receivables derived from its activities during the Czech‘s command economy Furthermore, there was a similarity in nature between CSOB‘s measures to attract private capital for the restructuring process during its privatization and a private bank‘s methods to solidify its position On the other hand, CSOB also made a qualified investment Since the alleged breach was closely related to the loan made by CSOB to the Slovak Collection Company, the Tribunal applied the two – fold test on this transaction Although this loan satisfied the broad definition under the BIT, it failed to be an investment under Agreement, each country in their respective territories established a special – purpose ―Collection Company‖ to which CSOB assigned certain non – performing receivables, i.e loan that is not meeting its payment To enable these companies to pay for the assigned receivables, CSOB provided them loan which is equal to the nominal values of those non – performing receivables The Agreement also stipulated the obligation of Slovakia Republic to cover any losses incurred by the Slovak Collection Company Besides, it also referred to the applicability of Czech – Slovakia BIT in which the right to submit to ICSID was included See more Ceskoslovenska Obchodni Banka, A.S v The Slovak Republic Decision on Jurisdiction, 24 May 1999 (14 ICSID Review-Foreign Investment Law Journal 251 (1999) (hereinafter ―CSOB v Slovak Republic‖) 116 CSOB v Slovak Republic, supra note 115, par.18 117 See id par.20 45 ICSID Convention The main criterion the Tribunal set out to interpret the non – defined ―investment‖ term under the Convention was whether a transaction “contributes substantially to a State’s economic development‖118 The expected value of those non – performing receivables was far less than the repaid amount to CSOB; therefore, this loan did not have any value for the Slovak Company Nonetheless, the Tribunal did not stop here; they went on assessing the whole expanding activity of CSOB in Slovak Republic since this loan was just a mere step of the activity: ―…individual transactions comprising it may still meet the requirements of an investment under the Convention, provided the overall operation for the consolidation of CSOB, to which it is closely connected, qualifies as an investment.‖119 The Tribunal agreed that CSOB‘s activity made a significant contribution to Slovak‘s economy They noticed of the intention of both parties to establish a CSOB subsidiary in the Slovak Republic that would ―take over the entire range of banking sector” 120 Moreover, all of the assigned receivables were to be paid through the CSOB‘s branch in Slovak and thus, contributing to the business activities of CSOB in this territory Besides, other elements of an investment were qualified since CSOB had to spend the resources in hope for a return of benefit while assumed risk in every economic activity Therefore, the whole development of CSOB in Slovak was qualified as an investment, which enables the single transactions which was an integral part to meet the requirement as an investment under the term of Convention (b) Implication of the case When a case is submitted under ICSID Convention, parties should specifically pay attention to the way past tribunal explained those non – defined ―national‖ or 118 See id par.76 See id par.82 (emphasis added) 120 See id par.87 119 46 ―investment‖ term on the Convention For a state – owned enterprise to be qualified as an investor, the ―source of capital‖ test is no longer relevant121 This Tribunal adopted a more objective method, that is, focus on the nature of an act This was later cited in Emilio Agustín Maffezini v Spain case122 with the name ―functional test‖ The latter case also developed the ―structural test‖ (comprising aspects such as legal personality, ownership and control) and ―functional test‖ (concerning the character, purposes and objectives of the functions) as the criteria for examining whether an entity is distinguishable from the State On the other hand, the Tribunal‘s interpretation of the investment by setting out its elements is also supported by latter cases Frequently, ICSID Tribunal has often analyzed an investment based on the Salini123 test with criteria, i.e commitment of capital, contribution to the host state‘s economic development, the duration and the risk of the transaction 2.4 Michael McKenzie v Vietnam This case is the most recently concluded case where Vietnam is the Respondent Since the Award in McKenzie case is not public, the sources of information can only be sought from the Press Release of Ministry of Justice124 and other newspapers The Claimant is a U.S investor who established a resort project named South Fork in Binh Thuan province He alleged that the revocation of investment license by Binh Thuan authority constituted to Vietnam‘s breach of obligations under UBTA In Claimant‘s view, the Municipality should have granted lands to South Fork Company to build a resort in Bac Binh District in accordance with the investment 121 A Broches (1995), ―Selected essays: World Bank, ICSID, and other subjects of public and private international law‖, Dordrecht: Martinus Nijho& Publishers, p.201 – 202, cited in M Feldman (2012), ―The Standing of State-Owned Entities Under Investment Treaties‖ (October 1, 2012), Yearbook on International Investment Law & Policy 2010-2011 (K Sauvant, ed.), Oxford University Press, p.622 122 Emilio Agustín Maffezini v The Kingdom of Spain, ICSID Case No.ARB/97/7, Award, 13 November 2000 123 Salini Costruttori SpA and Italstrade Spa v Kingdom of Morocco (Salini v Morocco), ICSID Case No ARB/00/4, Decision on Jurisdiction, 23 July 2001 (42 International Legal Materials 609 (2003) 124 Press Release of Ministry of Justice dated March 3, 2014, 47 license issued in 2004 However, the authorities licensed another company to exploit minerals on part of the land without his awareness Eventually, the claimant alleged that Vietnam had unlawfully expropriated his investment, violated ―fair and equitable treatment‖ as well as ―transparency‖ provisions under the UBTA and thus, requesting compensation On the other hand, Vietnam objected to the jurisdiction of the Tribunal based on the following reasons: (i) the Claimant lacked good faith when investing in Vietnam125, (ii) there was no qualified investment, (iii) McKenzie‘s claims were unjustified, and (iv) Vietnam complied with its obligation under the Treaty In December, 2013, the Tribunal issued its final award, declaring that they had no jurisdiction over this dispute and thus, dismissed all claims of Mckenzie Hence, the Claimant had to bear all costs of the arbitration, including Vietnam‘s costs of legal representation and assistance The first winning left so many lessons for Vietnam According to Ministry of Justice, Vietnam‘s government had reacted to the dispute very early and thus, there was coherence between our authorities during the settlement However, there are still questions regarding the relevance of the reason why the Municipality granted rights to exploit to other company Thus, this winning cannot totally assure us of the law enforcement or the accuracy of the Municipality‘s conduct So far, Vietnam has been 125 Other sources displayed that after the Municipality issued the decision on land rent to South Fork in 2009, they required it to complete legal capital within months and begin to implement the project in next month However, in 2010, the Municipality found no progress of the project On the other hand, the turning point of this dispute could be traced back in 2005 when Binh Thuan province rejected to grant South Fork rights to exploit titan in lands of its project Nevertheless, South Fork still negotiated with Duong Lam Company and agreed that Duong Lam can exploit titan in the aforementioned land Eventually, the Municipality approved to license Duong Lam, reasoning that they respected the agreement between Duong Lam and South Fork Nonetheless, the Municipality alleged of an illegal transfer of project since the agreement had been concluded in 2008 - before the time South Fork was granted the land rent decision and Duong Lam had transferred billion to South Fork See more at 48 Respondent in cases which are all subjected to UNCITRAL Arbitration Rules126 Undoubtedly, the number of cases relating to Vietnam after the conclusion of TPP will increase 126 Trinh Vinh Binh v Vietnam, UNCITRAL, Award (parties agreed to settle) (not public), Mar 1, 2007; Michael McKenzie v Vietnam, UNCITRAL, Award (not public), Dec 11, 2013; Dialasie SAS v Vietnam (UNCITRAL arbitration rules, administered by the PCA), 2011; RECOFI v Vietnam, UNCITRAL, Notice of Arbitration (not public), July 1, 2013 See the statistics from ;; 49 Summary of Chapter This chapter studies about the practice of interpretation of investment commitments through some typical cases commenced under both ICSID and UNCITRAL arbitration Although international investment cases not have binding effect, this chapter shows that the later tribunals still consider the standards in earlier cases and make their own decisions In those cases, the jurisdiction of tribunal is very important since the tribunal will not assess other claims unless they have jurisdiction Beside, this chapter also indicates some interesting as well as problematic points in the ISDS case that would make the host state afraid of this mechanism 50 CONCLUSION TPP will continue to be an interesting topic in the future, especially when the negotiation is completed The thesis shows that TPP will provide more opportunities of liberalization, promotion and protection of foreign investment With its unique features, besides from being a trade agreement, TPP will stand out as a regional investment agreement with more comprehensive WTO – plus obligations Besides, the ―ratchet‖ mechanism in TPP will ensure an irreversible minimum standard for liberalization by automatically binding members‘ future unilaterally liberalization to their lower level of restrictiveness On the other hand, with the aim of drafting a comprehensive investment chapter, those commitments to protecting investors in TPP are more refined than the provisions in previous international investment agreements that Vietnam participated However, the investor – state dispute settlement mechanism in TPP will still be a debate issue Needless to say, this mechanism is expected to provide the best enforcement of rights for investor On the contrary, given that this mechanism has many weaknesses (ad – hoc tribunals to interpret the obligation, no permanent body to correct the award, no binding precedent…) host states will be most likely damaged once they violate those obligations under the investment chapter Undoubtedly, if this mechanism is confirmed in the final agreement, Vietnam will be exposed to being sued under both ICSID and UNCITRAL forum Hence, the study of past cases that have interpreted those obligations will be useful for Vietnam as well as our investors when investment dispute under TPP happens Although the decisions of earlier cases not bind future tribunal, practice shows that this will still be one of the considerations in determination of the awards Besides, the study shows that this mechanism also has some problematic issues in fact (the misuse of ―treaty – shopping‖, the inconsistency of system of award…) which Vietnam should be aware to protect ourselves BIBLIOGRAPHY LEGAL DOCUMENTS In English Agreement between Japan and the Socialist Republic of Vietnam for the Liberalization, Promotion and Protection of Investment; Agreement between the United States America and the Socialist Republic of Vietnam on Trade Relation – Chapter IV; Agreement on Trade – Related Investment Measures (TRIMs); Convention for the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention); North American Free Trade Agreement 1992 (NAFTA) – Chapter Eleven (Investment); Trans – Pacific Partnership (TPP) – Investment Chapter (draft version); Trans-Pacific Strategic Economic Partnership; BOOKS AND BOOKLETS Materials in English Andrew Newcombe and Lluís Paradell (2009), “Law and Practice of Investment Treaties: Standard of Treatment”, Kluwer Law International; Ian Brownlie (2008), “Principles of Public International Law”, 7th edition, Oxford University Press; 10 Jan Paulsson (2005), “Denial of Justice in International Law”, Cambridge University Press; 11 Karl P Sauvant (2012), “Yearbook on International Investment Law & Policy 2010-2011” , Oxford University Press; 12 M Sornarajah (2010), “The International Law on Foreign Investment”, 3rd edition, Cambridge University Press; 13 Oxford Dictionary of English (2005), 2nd edition (revised), ed Catherine Soanes, Angus Stevenson, Oxford University Press; 14 Rudolf Dolzer and Christoph Schreuer (2008), “Principles of International Investment Law”, Oxford University Press; 15 UNCTAD (2011), “Scope and Definition - UNCTAD Series on Issues in International Investment Agreements II”, United Nations Publications; 16 UNCTAD (2012), “Expropriation (A sequel) - Series on Issues in International Investment Agreements II‖, United Nations Publication; 17 UNCTAD (2012), “Fair and Equitable Treatment A sequel - Series on Issues in International Investment Agreements II”, United Nations publication; 18 Yong-Shik Lee, Gary Horlick, Won-Mog Choi, Tomer Broude (2011), “Law and Development Perspective on International Trade Law”, Cambridge University Press; ARTICLES IN JOURNAL 19 Andrew Newcombe (2005), ―The Boundaries of Regulatory Expropriation in International Law‖, ICSID Review – Foreign Investment Law Journal, vol 20 no 1, -57; 20 David A Gantz (2003), ―The Evolution of FTA Investment Provisions: From NAFTA to the United States - Chile Free Trade Agreement‖, American University International Law Review, vol.19, 680 – 763; 21 Kenneth J Vandevelde (2005), ―A Brief History of International Investment Agreements‖, U.C Davis Journal of International Law & Policy, vol 12, no 1, 158 – 193; 22 Kennethj Vandevelde (2010), ―A unified theory of Fair and equitable treatment‖, International Law and Politics, vol.43, 43 – 106; 23 Leon E Trakman (2012), ―Resolving Investor-State Disputes under a Transpacific Partnership Agreement - What Lies Ahead?‖, Transnational Dispute Management, Forthcoming; vol 7, - 61 ; 24 Lucien J Dhooge (2001), ―The North American Free Trade Agreement and the Environment: The Lessons of Metalclad Corporation v United Mexican States‖, 10 Minnesota Journal of Global Trade, 209 – 289; 25 Peter D Isakoff (2013), ―Defining the Scope of Indirect Expropriation for International Investments‖, Global Business Law Review, 207 – 208 26 Razeen Sappideen and Ling Ling He (2012), ―Investor-State Arbitration: The Roadmap from the Multilateral Agreement on Investment to the Trans-Pacific Partnership Agreement‖, Federal Law Review, 40 (2), 207 – 226; REPORTS 27 UNCTAD (2013), “The rise of regionalism in international investment policymaking: consolidation or complexity?”, United Nations Publication ; 28 UNCTAD (2013), “World Investment Report 2013: Global Value Chains: Investment and Trade for Development”, United Nation Publication; 29 UNCTAD (2014), “Recent Developments in International Investment Agreements”, United Nations Publication; CASES AND ARBITRAL AWARDS 30 Ceskoslovenska Obchodni Banka, A.S v The Slovak Republic (CSOB v Slovak Republic), ICSID Case No ARB/97/4, Decision on Jurisdiction, 24 May 1999 (14 ICSID Review-Foreign Investment Law Journal 251 (1999); 31 Emilio Agustín Maffezini v The Kingdom of Spain (Emilio Agustín Maffezini v Spain), ICSID Case No.ARB/97/7, Award, 13 November 2000; 32 LFH Neer and Pauline Neer v Mexico (US v Mexico) (Neer), 15 October 1926, (Reports of International Arbitral Awards, vol IV pp 60-66); 33 Philip Morris Asia Limited v The Commonwealth of Australia, UNCITRAL, PCA Case No 2012-12, Notice of Arbitration, Nov 21, 2011; 34 Philip Morris Asia Limited v The Commonwealth of Australia, UNCITRAL, Australia‘s Response to the Notice of Arbitration, Dec 21, 2011; 35 Salini Costruttori SpA and Italstrade Spa v Kingdom of Morocco (Salini v Morocco), ICSID Case No ARB/00/4, Decision on Jurisdiction, 23 July 2001 (42 International Legal Materials 609 (2003) ; 36 Saluka Investments BV (The Netherlands) v The Czech Republic (Saluka v Czech Republic), UNCITRAL, Partial Award, 17 March 2006; 37 Sporrong and Lönnroth v Sweden, European Court of Human Rights, Judgment, 23 September 1982; 38 Te´cnicas Medioambientales Tecmed, SA v Mexico (Tecmed v Mexico), ICSID Case No ARB (AF)/00/2, Award, 29 May 2003; 39 United Mexican States v Metalclad Corporation, Supreme Court of British Columbia, 2001 BCSC 664, L002904, May 2nd, 2001; MATERIAL FROM WEBSITES (last accessed all on July 15, 2014) 40 ; 41 ; 42 ; 43 ; 44 ; 45 ; 46 ; 47 ; 48 ; 49 ; 50 ; 51 ; 52 ; 53 ; 54 ; 55 ; 56 ; 57 ; 58 ; 59 ; WEBSITES 60 http://unctad.org/en/Pages/Home.aspx; 61 http://www.italaw.com/; 62 http://www.ssrn.com/en/; 63 https://icsid.worldbank.org/ICSID/Index.jsp APPENDIX Table 1: Number of known cases where Respondents are TPP negotiating parties Respondent State Australia Brunei Canada Chile Japan Malaysia Mexico New Zealand Peru Singapore United States of America Vietnam ICSID 0 21 12 UNCITRAL 15 0 0 * ICSID cases also include cases under ICSID Additional Facility Rules * The collection excludes cases that investors just filed notice of intent and arbitration eventually never began * The source of materials is from websites: http://www.italaw.com/ and http://unctad.org/