Safeguarding Public Policy Space in International Investment Agreements: An ASEAN Perspective
DOI:
https://doi.org/10.14456/tresp.2015.1Keywords:
International Investment agreement, bilateral investment treaty, free trade agreement, investor-state dispute settlement, public policyAbstract
International investment agreements are treaties aimed at attracting foreign investment by providing protection for such investment in the host country. Over 3,200 of such agreements exist globally, including over 300 by ASEAN countries. These agreements also give investors the right to directly challenge their hosts for compensation, in case of breach. They therefore significantly affect the host country’s space in the conduct of public welfare policy, which includes safeguarding the environment, public health or financial stability. This is why there has recently been a wave of critique against the current investment agreement regime. This policy-oriented article highlights current issues relating to international investment agreements. Drawing examples from treaty-making experiences of ASEAN countries, the article shows how these countries attempt to protect their public policy space, most prominently through the inclusion of safeguard clauses into these agreements. However, this does not completely eliminate risks of litigation, and some ASEAN countries have taken more extreme measures by disengaging themselves from such agreements.
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