Melbourne Law School - Research Publications
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ItemNo Preview AvailableInward foreign investment screening targets China: interdisciplinary perspectives(EDWARD ELGAR PUBLISHING LTD, 2023-06)Screening of inward foreign investment in numerous countries worldwide has heightened in recent years for a range of reasons, one of which is the volume of Chinese outward investment. Moulding screening policies around concerns about Chinese investment has been a common pattern, particularly among developed countries and allies of the United States. The application of screening measures to Chinese investments in particular is also seen in recent practice in numerous countries. These developments create potential inconsistencies with international investment law, at least for those countries with an international investment agreement with China. The 2020 arbitral award in Global Telecom v Canada shows that even a provision that explicitly excludes investment screening decisions from a bilateral investment treaty may not apply to prevent all related investment treaty claims. The increased use of screening as a policy tool, with respect to China and otherwise, also raises questions about economic rationale and impact. Put simply, blocking a foreign investment proposal may have negative effects on shareholders, jobs and the economy itself, while even the existence of a restrictive screening regime and the threat of the imposition of conditions on a deal may dampen the appeal for foreign investors.
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ItemNo Preview AvailableWTO law: testing the limits of the security exceptions(ANU Press, 2023)
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ItemIs Australia's Foreign Investment Screening Policy Consistent with International Investment Law?(Melbourne Journal of International Law, 2022)Significant changes to Australia’s foreign investment screening policy came into effect in 2021, modifying the Foreign Acquisitions and Takeovers Act 1975 (Cth). These changes establish a framework for national security reviews of proposed foreign investments in Australia, including the potential for review of investments that have already been lawfully admitted into the country. These developments increase the risk of conflict with international investment law, as reflected in Australia’s obligations under more than thirty international investment agreements, in the form of bilateral investment treaties and preferential trade agreements with investment chapters or associated investment agreements. Traditionally, these agreements shielded Australia’s foreign investment policy by restricting themselves to investments that had already been established in Australia. In more modern agreements, a range of reforms add explicit and implicit protections to Australia’s foreign investment policy. However, the co-existence of traditional and modern approaches and the inconsistency with which reforms have been adopted across different treaties complicate the assessment of Australia’s compliance with international investment law in its foreign investment screening policy. Potential remains for claims to be brought against Australia in this regard by home states or investors themselves.
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ItemIncoming: How International Investment Law Constrains Foreign Investment Screening(Brill, 2022-01-01)Abstract Domestic screening of foreign investment, often on national security grounds, has intensified in recent years. More countries are introducing such regimes, while others expand their scope or allow retrospective screening. These developments increase the potential for investor–State claims under international investment agreements, even sometimes regarding investments that are not yet established. Host States need to be aware of the potential for adverse screening decisions, the imposition of conditions, or due process shortcomings to conflict with investment obligations, such as fair and equitable treatment or most-favoured nation treatment. Although tools exist in some treaties to exclude or exempt investment screening, these may not prevent a successful investment claim. For example, listing a screening regime as a non-conforming measure may not cover all future amendments, and general and security exceptions are subject to considerable uncertainty. Host States need to ensure compliance with international investment law in creating and developing screening regimes.
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ItemRemarks by Tania Voon(Cambridge University Press (CUP), 2018)
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ItemEnding international investment agreements: Russia's withdrawal from participation in the energy charter treaty(Cambridge University Press, 2017-01-01)When states withdraw from bilateral investment treaties or denounce multilateral treaties related to foreign investment, a range of intersecting questions arise in domestic and international law. Recent developments have demonstrated potential incongruities between domestic and international approaches to investment protection, including as regards the effectiveness of withdrawal and the implications for existing investments. This essay reflects on international and domestic disputes involving the withdrawal of the Russian Federation from participation in the Energy Charter Treaty (ECT) to highlight these interactions. These issues have become particularly pertinent today because more than 1,500 international investment agreements (IIAs) are nearing expiry of their initial term, providing an opportunity for termination. Moreover, some states have begun to terminate or denounce investment treaties, while many more are engaging in a process of renegotiation and reform. The Russian case study also highlights the potentially far-reaching effects of a state simply signing a treaty, even many years after the state has expressed its decision to withdraw from it, and notwithstanding tensions with the domestic legal framework.
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Item[Review of the book} Emily Sipiorski. Good Faith in International Investment Arbitration. Oxford: Oxford University Press, 2019(Oxford University Press, 2019-11-01)
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ItemTobacco, Health and Investor-State Dispute Settlement: Australia's Recent Treaty Practice(Brill, 2020)The claim brought by Philip Morris Asia Ltd against Australia’s tobacco plain packaging scheme under Australia’s bilateral investment treaty (‘bit’) with Hong Kong was this country’s first experience as respondent in an investment treaty arbitration. Since then, Australia has faced two more claims, although they do not appear to be proceeding very far or very quickly (unsurprisingly, since they are brought pursuant to an international investment agreement (‘iia’) that contains no mechanism for investor–state dispute settlement (‘isds’)).
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ItemThe Japan-Australia Investment Relationship: Treaties Then and Now(Thomson Reuters, 2020)Australia continues to seek closer economic relationships with its Asian neighbours and other countries around the glove, particularly through the conclusion of treaties governing trade and investment matters.
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ItemHow Trade-Restrictive Is Standardized Packaging? Economic and Legal Implications of the WTO Panel Reports in Australia-Tobacco Plain Packaging(Cambridge University Press (CUP), 2020)Published by Cambridge University Press. The lengthy and long-awaited WTO Panel Reports in Australia-Tobacco Plain Packaging contain a host of material for reflection, particularly in relation to the Agreement on Technical Barriers to Trade (TBT) and the Agreement on Trade-Related Aspects of Intellectual Property Rights. While two of the Panel Reports proceed to appeal, we consider with respect to the two adopted Panel Reports the Panel's reasoning in relation to Article 2.2 of the TBT, focusing on the meaning of trade-restrictiveness. This concept central to WTO law has been under-examined to date, and these Panel Reports demonstrate some of the complexities in identifying trade-restrictive measures, particularly where they are non-discriminatory. The Panel found that Australia's measures restrict trade because they contribute to their objective of reducing tobacco consumption. Therefore, any equally effective alternative will similarly restrict trade. This curious result under TBT Article 2.2 may be particular to non-discriminatory measures that target 'socially bad' products such as tobacco.