Preserving Public Interests Involved in Investor-State Arbitration through Transparency: A Perspective from the China and ASEAN Free Trade Area
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Published:
Dec 20, 2017
Keywords:
CAFTA Investor-State Arbitration Public Interest Transparency
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Abstract
For the last decade, the regime of transparency in investor-state arbitration has been officially incorporated into numerous investment treaties and recent modified arbitration rules due to the public interests involved in investment disputes. The Agreement on Investment of the Framework Agreement on Comprehensive Economic Cooperation between the ASEAN and China (“the Agreement on Investment”), as the investment treaty promoting foreign direct investment and protecting legal rights of foreign investors in the China-ASEAN Free Trade Area (“CAFTA”), lacks explicit provisions governing transparency in investor-state arbitration. Due to this absence, the Article raises the concern that public interests involved in investor-state arbitration in the CAFTA cannot be well preserved. In order to alleviate such concern, the Article aims to propose ASEAN and China to establish a mandatory transparent regime applicable to the investor-state arbitration in the CAFTA.
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How to Cite
Yang, Xinglong. “Preserving Public Interests Involved in Investor-State Arbitration through Transparency: A Perspective from the China and ASEAN Free Trade Area”. Naresuan University Law Journal 10, no. 2 (December 20, 2017): 27–48. Accessed December 22, 2024. https://so04.tci-thaijo.org/index.php/lawnujournal/article/view/106253.
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Academic Articles
References
“Agreement between the Government of Canada and the Government of the People’s Republic of China for the Promotion and Reciprocal Protection of Investments (Signed September 9, 2012, Entered into Force October 1, 2014)(Canada-China Fipa).” Accessed July 26, 2017. https://investmentpolicyhub.unctad.org/IIA/country/42/treaty/778.
“Agreement between the Government of the United Mexican States and the Government of the People’s Republic of China on the Promotion and Reciprocal Protection of Investment (Signed July 11, 2008, Entry into Force June 6, 2009) (China-Mexico Bit).” Accessed July 26, 2017. https://investmentpolicyhub.unctad.org/IIA/country/42/treaty/938.
“Agreement Establishing the Asean-Australia-New Zealand Free Trade Area (Asean-Australia-New Zealand) (Signed February 27, 2009, Entered into Force January 1, 2010).” Accessed July 26, 2017. https://www.asean.org/storage/images/archive/22260.pdf.
“Agreement of Investment under the Framework Agreement on Comprehensive Economic Cooperation among the Governments of the Member Countries of the Association of Southeast Asian Nations and the Republic of Korea
(Asean-South Korea) (Signed June 2, 2009).” Accessed July 26, 2017. https://akfta.asean.org/index.php?page=investment-legal-text.
“Agreement on Investment of the Framework Agreement on Comprehensive Economic Cooperation between the Asean and China (“Agreement on Investment”) (Asean-China) (Adopted August 15, 2009, Entered into Force August 1, 2010).”
Accessed July 29, 2017. https://cil.nus.edu.sg/rp/pdf/2009%20Agreement%20on%20Investment
%20of%20the%20Framework%20Agmt%20
on%20Comprehensive%20Ec%20Coop%20ASEAN%20and%20China-pdf.pdf.
ACIA. “Asean Comprehensive Investment Agreement (Asean Member States) (Signed February 29, 2009, Entered into Effect March 29, 2009).” Accessed July 26, 2017. https://agreement.asean.org/media/download/20140119035519.pdf.
Argen, Robert. “Ending Blind Spot Justice: Broadening the Transparency Trend in International Arbitration.” Brooklyn Journal of International Law 40, no. 1 (2015): 215.
Asteriti, Alessandra, and Christian J. Tams. “Transparency and Representation of the Public Interest in Investment Treaty Arbitration.” In International Investment Law and Comparative Public Law, edited by Stephan W. Schill, 3. Oxford: Oxford University, 2010.
Bentham, Jeremy. Draught of a New Plan for the Organization of the Judicial Establishment in France; Proposed as a Succedaneum to the Draught Presented, for the Same Purpose, by the Committee of Constitution, to the National Assembly. London: n.d., 1790.
Blackaby, Nigel. “Public Interest and Investment Treaty Arbitration.” Transnational Dispute Management 1, no. 1 (2004): 355.
Choudhury, Barnali. “Recapturing Public Power: Is Investment Arbitration’s Engagement of the Public Interest Contributing to the Democratic Deficit.” Vanderbilt Journal of Transnational Law 41 (2008): 775.
Delaney, Joachim, and Daniel Barstow Magraw. “Procedural Transparency.” In The Oxford Handbook of International Investment Law, edited by Peter Muchlinski, Federico Ortino, and Christoph Schreuer, 762. Oxford: Oxford University, 2008.
Forer, Charles F. Keeping the Confidential Arbitration Proceeding Confidential. Pennsylvania: Legal Intelligencer, 2015.
Harrison, James. Recent Developments to Promote Transparency and Public Participation in Investment Treaty Arbitration. Edinburgh: University of Edinburgh School of Law Working Paper Series, 2011.
ICSID. “The Convention on the Settlement of Investment Disputes between States and Nationals of Other States.” (Opened for Signature 18 March 1965, Entered into Force 14 October 1966) (“Icsid Convention”), Art 14. Accessed August 3, 2017. https://icsid.worldbank.org/apps/ICSIDWEB/icsiddocs/Documents
/ICSID%20Convention%20English.p.
ICSID. “Rules of Procedure for Arbitration Proceedings (‘Icsid Arbitration Rules’)(Adopted April 2006).” Last modified n.d. Accessed July 29, 2017. https://icsid.worldbank.org/apps/ICSIDWEB/icsiddocs/Pages
/ICSIDConvention-Arbitration-Rules.aspx.
Katranstiotis, Dimitrios. “Transparency in International Investment Arbitration: From the Current Towards the Future Normative Framework.” Master’s thesis, International Hellenic University, 2014.
Malanczuk, Peter. China and the Emerging Standard of Transparency in Investor-State Dispute Settlement. Wellington : New Zealand Association for Comparative Law, 2015.
Marshall, Fiona. “Defining New Institutional Options for Investor-State Dispute Settlement.” Last modified 2009, Accessed July 27, 2017. https://www.iisd.org.
UNCITRAL. “Rules on Transparency in Treaty-Based Investor-State Arbitration (“Uncitral Transparency Rules”) (Came into Force 1 April 2014).” Last modified n.d., Accessed July 29, 2017. https://www.uncitral.org/pdf/english/texts/
arbitration/rules-on-transparency/Rules-on-Transparency-E.pdf.
UNCITRAL. “United Nations Commission on International Trade Law Arbitration Rules (‘Uncitral Arbitration Rules’) (as Adopted in 2013).” Last modified n.d. Accessed July 29, 2017. https://www.uncitral.org/pdf/english/texts/arbitration/
arb-rules-2013/UNCITRAL-Arbitration-Rules-2013-e.pdf.
United Nations. “South-South Cooperation in International Investment Agreements.” Last modified n.d., 2005. Accessed July 29, 2017. https://unctad.org/en/Docs/iteiit20053_en.pdf.
Zhen, Shang. “Chinese Delegate at the 68th Session of the Un General Assembly on Agenda Item 79 Report of Uncitral on the Work of Its 46th Session.” Last modified n.d., Accessed July 29, 2017. https://www.china-un.org/eng/chinaandun/legalaffairs/sixthcommittee1/t1091525.htm.
“Agreement between the Government of the United Mexican States and the Government of the People’s Republic of China on the Promotion and Reciprocal Protection of Investment (Signed July 11, 2008, Entry into Force June 6, 2009) (China-Mexico Bit).” Accessed July 26, 2017. https://investmentpolicyhub.unctad.org/IIA/country/42/treaty/938.
“Agreement Establishing the Asean-Australia-New Zealand Free Trade Area (Asean-Australia-New Zealand) (Signed February 27, 2009, Entered into Force January 1, 2010).” Accessed July 26, 2017. https://www.asean.org/storage/images/archive/22260.pdf.
“Agreement of Investment under the Framework Agreement on Comprehensive Economic Cooperation among the Governments of the Member Countries of the Association of Southeast Asian Nations and the Republic of Korea
(Asean-South Korea) (Signed June 2, 2009).” Accessed July 26, 2017. https://akfta.asean.org/index.php?page=investment-legal-text.
“Agreement on Investment of the Framework Agreement on Comprehensive Economic Cooperation between the Asean and China (“Agreement on Investment”) (Asean-China) (Adopted August 15, 2009, Entered into Force August 1, 2010).”
Accessed July 29, 2017. https://cil.nus.edu.sg/rp/pdf/2009%20Agreement%20on%20Investment
%20of%20the%20Framework%20Agmt%20
on%20Comprehensive%20Ec%20Coop%20ASEAN%20and%20China-pdf.pdf.
ACIA. “Asean Comprehensive Investment Agreement (Asean Member States) (Signed February 29, 2009, Entered into Effect March 29, 2009).” Accessed July 26, 2017. https://agreement.asean.org/media/download/20140119035519.pdf.
Argen, Robert. “Ending Blind Spot Justice: Broadening the Transparency Trend in International Arbitration.” Brooklyn Journal of International Law 40, no. 1 (2015): 215.
Asteriti, Alessandra, and Christian J. Tams. “Transparency and Representation of the Public Interest in Investment Treaty Arbitration.” In International Investment Law and Comparative Public Law, edited by Stephan W. Schill, 3. Oxford: Oxford University, 2010.
Bentham, Jeremy. Draught of a New Plan for the Organization of the Judicial Establishment in France; Proposed as a Succedaneum to the Draught Presented, for the Same Purpose, by the Committee of Constitution, to the National Assembly. London: n.d., 1790.
Blackaby, Nigel. “Public Interest and Investment Treaty Arbitration.” Transnational Dispute Management 1, no. 1 (2004): 355.
Choudhury, Barnali. “Recapturing Public Power: Is Investment Arbitration’s Engagement of the Public Interest Contributing to the Democratic Deficit.” Vanderbilt Journal of Transnational Law 41 (2008): 775.
Delaney, Joachim, and Daniel Barstow Magraw. “Procedural Transparency.” In The Oxford Handbook of International Investment Law, edited by Peter Muchlinski, Federico Ortino, and Christoph Schreuer, 762. Oxford: Oxford University, 2008.
Forer, Charles F. Keeping the Confidential Arbitration Proceeding Confidential. Pennsylvania: Legal Intelligencer, 2015.
Harrison, James. Recent Developments to Promote Transparency and Public Participation in Investment Treaty Arbitration. Edinburgh: University of Edinburgh School of Law Working Paper Series, 2011.
ICSID. “The Convention on the Settlement of Investment Disputes between States and Nationals of Other States.” (Opened for Signature 18 March 1965, Entered into Force 14 October 1966) (“Icsid Convention”), Art 14. Accessed August 3, 2017. https://icsid.worldbank.org/apps/ICSIDWEB/icsiddocs/Documents
/ICSID%20Convention%20English.p.
ICSID. “Rules of Procedure for Arbitration Proceedings (‘Icsid Arbitration Rules’)(Adopted April 2006).” Last modified n.d. Accessed July 29, 2017. https://icsid.worldbank.org/apps/ICSIDWEB/icsiddocs/Pages
/ICSIDConvention-Arbitration-Rules.aspx.
Katranstiotis, Dimitrios. “Transparency in International Investment Arbitration: From the Current Towards the Future Normative Framework.” Master’s thesis, International Hellenic University, 2014.
Malanczuk, Peter. China and the Emerging Standard of Transparency in Investor-State Dispute Settlement. Wellington : New Zealand Association for Comparative Law, 2015.
Marshall, Fiona. “Defining New Institutional Options for Investor-State Dispute Settlement.” Last modified 2009, Accessed July 27, 2017. https://www.iisd.org.
UNCITRAL. “Rules on Transparency in Treaty-Based Investor-State Arbitration (“Uncitral Transparency Rules”) (Came into Force 1 April 2014).” Last modified n.d., Accessed July 29, 2017. https://www.uncitral.org/pdf/english/texts/
arbitration/rules-on-transparency/Rules-on-Transparency-E.pdf.
UNCITRAL. “United Nations Commission on International Trade Law Arbitration Rules (‘Uncitral Arbitration Rules’) (as Adopted in 2013).” Last modified n.d. Accessed July 29, 2017. https://www.uncitral.org/pdf/english/texts/arbitration/
arb-rules-2013/UNCITRAL-Arbitration-Rules-2013-e.pdf.
United Nations. “South-South Cooperation in International Investment Agreements.” Last modified n.d., 2005. Accessed July 29, 2017. https://unctad.org/en/Docs/iteiit20053_en.pdf.
Zhen, Shang. “Chinese Delegate at the 68th Session of the Un General Assembly on Agenda Item 79 Report of Uncitral on the Work of Its 46th Session.” Last modified n.d., Accessed July 29, 2017. https://www.china-un.org/eng/chinaandun/legalaffairs/sixthcommittee1/t1091525.htm.