Australia, Hearings, Investor-State arbitration, ISDS, ISDS Reform, PCA, Permanent Court of Arbitration, Transparency, Transparency in investment arbitrations

(University of Sydney & Williams Trade Law)/ /Leave a comment

On 4 August 2023, in an investor-State dispute settlement (“ISDS) arbitration commenced against Australia on 29 March 2023 under the Association of Southeast Asian Nations (“ASEAN”) Australia New Zealand Agreement for a Free Trade Area (“AANZFTA”), Singapore-incorporated Zeph filed an application for interim measures including an unusual request. Zeph sought an order that Australia’s “officers…

ADR, Arb-Med, Asia-Pacific, Australia, International Arbitration Procedures, International Commercial Arbitration, investor-State arbitration and mediation, Litigation, Med-Arb, Mediation

(University of Sydney & Williams Trade Law)/ /Leave a comment

On 22 February 2024, I am pleased to deliver the 6th ADR Address of the Supreme Court of New South Wales, co-organised by the Australian Disputes Centre. Past lecturers have been senior former or serving Australian judges, with some discussing developments in arbitration. More widely, there has been quite extensive discussion on case law and…

Australia, Australian Arbitration Week, ICSID Arbitration, ISDS, Uncategorized

(University of Sydney & Williams Trade Law)/ /Leave a comment

A seminar on 10 November 2023 during Australian Arbitration Week discussed “Australia’s engagement in the Investor-State Dispute Settlement (ISDS) reform process”. My presentation divided successive governments’ approach into three significant eras over the last decade: anti-ISDS (2011-13), case-by-case ISDS (2014-2021), and uncertainty (since 2022). Some uncertainty has dissipated since the seminar. On 14 November 2022,…

Arbitrator Selection, Diversity, sociology of international arbitration

(Universiti Brunei Darussalam & University of Sydney), (University of Sydney & Williams Trade Law), and (University of Sydney)/ /3 Comments

In her blog post on 27 February 2022, Kiran Nasir Gore expressed measured optimism regarding the international arbitration (IA) community’s collective progress towards greater diversity especially over the last few years. She highlighted various recent initiatives and developments including Racial Equality for Arbitration Lawyers (REAL), the Rising Arbitrators Initiative (RAI) and the appointment of first…

ACICA, Arbitration, Australia, Med-Arb, Mediation

(University of Sydney & Williams Trade Law)/ /1 Comment

New arbitration rules for the Australian Centre for International Commercial Arbitration (ACICA) came into force on 1 April 2021. The 2021 ACICA Rules update the 2016 Rules outlined here to bring them in line with other major institutional rules. Changes include express provisions regarding “e-arbitrations” (e.g. Rule 14) and to consolidate proceedings even in “chain…

International Investment Arbitration, Investment Arbitration, Investment Treaties, ISDS, ISDS Reform, Mediation

(Waseda University), (University of Sydney & Williams Trade Law), and (University of Sydney)/ /Leave a comment

Arbitration has been the default dispute resolution mechanism in the investor-state dispute settlement (ISDS) regime for a long time. Provisions for third-party procedures other than arbitration have been relatively rare in older generation bilateral investment treaties (BITs). Even where those have provided in advance for the option of ICSID (Convention or Additional Facility) Conciliation Rules,…

Best practices, COVID-19, ODR, Online Arbitration, sociology of international arbitration, Virtual hearings

(University of Sydney & Williams Trade Law)/ /Leave a comment

Travel and other restrictions due the COVID-19 pandemic have meant that virtual hearings have become the “new normal” for international commercial arbitration, and even perhaps for investor-state arbitrations. But what are the longer-term prospects for virtual hearings or “e-arbitration” more generally, and even for the relative popularity of arbitral seats, in the wake of the…

ISDS, Japan, Korea, Mediation, WTO

(Waseda University), (University of Sydney & Williams Trade Law), and (Williams Trade Law)/ /Leave a comment

1. Complex Multi-faceted Tensions between Japan and Korea A media and geopolitical storm recently erupted after Japan introduced measures affecting exports to the Republic of Korea (Korea). Thunder sounded with Japan’s imposition of certification requirements on three chemicals needed by South Korean companies to make semiconductors, memory chips and displays for consumer electronics (the 4…

ISDS, Japan, Korea, Mediation, WTO

(Waseda University), (University of Sydney & Williams Trade Law), and (Williams Trade Law)/ /Leave a comment

Our previous posting set out the background to the current trade tension between Korea and Japan. It outlined the possibility of Japan bringing claims under a 1965 Treaty that purported to settle claims resulting from Japan’s colonisation of Korea, or under two investment treaties, regarding Korean courts recently ordering Japanese companies to pay compensation to…

Japan, Japan Commercial Arbitration Association, JCAA

(Universiti Brunei Darussalam & University of Sydney) and (University of Sydney & Williams Trade Law)/ /Leave a comment

Not long after the ICCA Congress held in Sydney, the Japan International Dispute Resolution Center (JIDRC) was established in Osaka on 1 May 2018, with some fanfare from the Japanese government and local legal circles. ‘JIDRC-Osaka’ does not provide arbitration services but offers specialist facilities for international arbitration hearings and other forms of Alternative Dispute Resolution…

Arbitral seat, Arbitration, Asia-Pacific, Australia

(University of Sydney & Williams Trade Law) and (Universiti Brunei Darussalam & University of Sydney)/ /1 Comment

With some fanfare, on the sidelines of the ICCA Congress hosted in Sydney over 15-18 April, the Australian Trade and Investment Commission (Austrade) unveiled a glossy brochure entitled “Australia’s Capability in International Commercial Arbitration”. This blog posting explains its key contents, identifying both convincing and unconvincing aspects. Our later blog posting will compare Japan as…

Arbitration institution, Japan, JCAA

(University of Sydney & Williams Trade Law) and (Waseda University)/ /Leave a comment

“Japan is Back”?   Prime Minister Shinzo Abe himself is certainly back – having led the Liberal Democratic Party (LDP) to a fifth consecutive election in October 2017. If Abe remains in power for another three years, he will become the longest serving Japanese prime minister since World War II. Although the electorate probably responded…

Arbitration, Australia, ISDS, New Zealand

(University of Auckland) and (University of Sydney & Williams Trade Law)/ /Leave a comment

New Zealand now officially opposes investor-state dispute settlement (ISDS), thanks to the election of a new centre-left Labour-led coalition government that took office in October 2017. In a post-Cabinet press conference on 31 October, Prime Minister Jacinda Adern announced that: “We remain determined to do our utmost to amend the ISDS provisions of TPP. In…

Arbitration, Arbitration Act, Australia, Transparency

(University of Sydney & Williams Trade Law)/ /2 Comments

On 22 March 2017, with minimal fanfare, the Civil Law and Justice Amendment Legislation Bill 2017 (“2017 Bill”) was introduced into the upper house of the federal Parliament. Buried within this omnibus Bill were four proposed reforms to the International Arbitration Act (IAA), renamed as such in 1989 when Australia was one of the first…

Arbitration, Australia, CETA, Trans-Pacific Partnership

(University of Sydney & Williams Trade Law)/ /Leave a comment

Critics of the TPP, and ISDS protections more generally, have often argued that a particular concern is that the US is not only a large source of FDI, but that it is ‘the nation whose corporations use ISDS the most’ (referring to ANU’s Professor Thomas Faunce). A recent paper by ANU’s Dr Kyla Tienhaara for…

Arbitration, foreign direct investment, Investment agreements, Investment Arbitration, Investment protection, TPP, Trans-Pacific Partnership

(University of Sydney & Williams Trade Law)/ /Leave a comment

The Trans-Pacific Partnership free trade agreement, signed on 4 February 2016 among 12 Asia-Pacific economies, faces a rocky road to ratification. In the run-up to the US presidential election in November, both Donald Trump and (for now) Hillary Clinton say they are opposed. Yet Australian Prime Minister Turnbull urged President Obama to put the FTA to a vote in Congress…

Australia, Investment, Investment agreements, Investment Arbitration, Investment protection, Investor

(University of Sydney & Williams Trade Law)/ /Leave a comment

Indonesia is not the only Asia-Pacific nation that is reassessing investment treaties containing provisions on Investor-State Dispute Settlement (ISDS, especially arbitration). India announced a review in 2013, partly in the wake of the successful claim from an Australian mining investor, although the impact in practice is hard to discern or predict – especially under the…