Restoring Balance in Investor State Dispute Settlement: Addressing Treaty Shopping and Indirect Expropriation Claims and Consistent Approaches to Decision-Making (original) (raw)

Organizations & Markets: Policies & Processes eJournal, 2018

Abstract

This article explorestwo of the apparent concerns of Western liberal democraciesregarding investor state dispute settlement provisions in bilateral and multilateral investment treaties and trade agreements. Both of these concerns were highlighted in the arbitration in wherein Philip Morris Asia challenged Australia’s Tobacco Plain Packaging Act 2011 as amounting to, amongst other things, indirect expropriation or a breach of the fair and equitable treatment (FET) standard. This challenge came about as a result of Philip Morris Asia acquiring all of the shares in Philip Morris Australia, so that a claim could be brought under the 1993 bilateral investment treaty between Hong Kong and Australia. The case, therefore, highlighted the possibility of treaty shopping by an investor to secure the protection of an investment treaty, as well as the possibility of challenging state regulation on the basis of indirect expropriation or breach of the FET standard. This article will explore recent...

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