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Regulatory Autonomy in International Economic Law

The Evolution of Australian Policy on Trade and Investment

Andrew D. Mitchell, Elizabeth Sheargold and Tania Voon

Regulatory Autonomy in International Economic Law provides the first extensive legal analysis of Australia’s trade and investment treaties in the context of their impact on national regulatory autonomy. This thought-provoking study offers compelling lessons for not only Australia but also countries around the globe in relation to pressing current problems, including the uncertain future of the World Trade Organization and widespread concerns about the legitimacy of investor–State dispute settlement.
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Table of Treaties

The Evolution of Australian Policy on Trade and Investment

Andrew D. Mitchell, Elizabeth Sheargold and Tania Voon

PREFERENTIAL TRADE AGREEMENTS

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AANZFTA

Agreement Establishing the ASEAN–Australia–New Zealand Free Trade Area, signed 27 February 2009 (entered into force 1 January 2010), as amended by the First Protocol to Amend the Agreement Establishing the ASEAN–Australia–New Zealand Free Trade Area, signed 26 August 2014 (entered into force 1 October 2015) 8, 27, 29, 41, 42, 45, 56, 57, 69, 84, 85, 87, 88, 89, 91, 92, 95, 96, 97, 98, 99, 103, 104, 111, 112, 114, 115, 116, 118, 127, 129, 132, 142, 144, 145, 146, 147, 148, 150, 153, 156, 157, 162, 169, 171, 172, 175, 176, 182, 183, 184, 185, 189, 197, 201, 206, 228, 231, 232, 233

ACIFTA

Australia–Chile Free Trade Agreement, signed 30 July 2008 (entered into force 6 March 2009) 8, 27, 28, 30, 40, 45, 47, 56, 65, 66, 69, 75, 84, 85, 87, 88, 89, 92, 96, 97, 98, 99, 105, 107, 109, 110, 111, 114, 115, 123, 126, 127, 129, 132, 142, 144, 145, 146, 147, 150, 153, 154, 157, 158, 165, 172, 175, 176, 182, 183, 184, 185, 189, 193, 201, 206, 228, 229, 231, 232, 233, 246, 251

ANZCERTA

Australia–New Zealand Closer Economic Relations Trade Agreement, signed 28 March 1983 (entered into force 1 January 1983) 3, 14, 15, 16, 17–22, 35, 38, 45, 65, 69, 83, 89, 145, 171, 172, 201, 228

ANZCERTA Investment Protocol

ANZCERTA Protocol on Acceleration of Free Trade in Goods

Protocol on Investment to the Australia–New Zealand Closer Economic Relations Trade Agreement, signed 16 February 2011 (entered into force 3 January 2013) 19, 35, 126, 127, 129, 141, 142, 145, 146, 150, 153, 154, 157, 158, 159, 172, 173, 197, 206, 229, 230, 231, 233, 234, 235, 236

Protocol to the Australia–New Zealand Closer Economic Relations Trade Agreement on Acceleration of Free Trade in Goods, signed 18 August 1988 (entered into force 18 August 1988) 19

ANZCERTA Services Protocol

Protocol on Trade in Services to the Australia New Zealand Closer Economic Relations—Trade Agreement, signed 18 August 1988 (entered into force 1 January 1989) 19, 83, 85, 86, 87, 90, 92, 95, 96, 97, 101–3, 109, 111, 112, 113, 114, 115, 117, 118, 119, 228

AUSFTA

Australia–United States Free Trade Agreement, signed 18 May 2004 (entered into force 1 January 2005) 2, 8, 21, 27, 28, 30, 38, 40, 43, 44, 45, 46, 47, 48, 49, 50, 51, 53, 54, 55, 56, 57, 64, 65, 66, 67–73, 75–7, 79, 80, 83, 84, 85, 87, 88, 89, 92, 96, 97, 98, 99, 105, 106, 107, 108, 109, 110, 111, 114, 115, 116, 117, 120, 125, 126, 127, 129, 130, 131, 132, 134, 136, 142, 143, 144, 145, 146, 147, 149, 150, 153, 154, 157, 158, 159, 172, 175, 181, 197, 201, 202, 205, 206, 228, 229, 231, 232, 233, 234, 236, 237, 238, 239, 240, 246, 247, 252, 253, 257

Canada–Korea FTA

Free Trade Agreement between Canada and the Republic of Korea, signed 23 September 2014 (entered into force 1 January 2015) 136

CETA

Comprehensive Economic and Trade Agreement between Canada and the European Union, signed 30 October 2016 (not yet in force but provisionally applied in part) 91, 127, 139, 155, 196

ChAFTA

Free Trade Agreement between Australia and the People’s Republic of China, signed 17 June 2015 (entered into force 20 December 2015) 8, 34, 35, 45, 54, 58, 69, 72, 74, 84, 85, 87, 88, 89, 92, 95, 96, 97, 98, 99, 105, 107, 109, 110, 111, 114, 115, 119, 127, 128, 129, 130, 132, 133, 142, 145, 146, 153, 154, 157, 158, 162, 172, 178, 179, 182, 183, 184, 185, 188, 190, 191, 194, 197, 201, 206, 228, 229, 230, 231, 232, 233, 238, 250, 251

ChinaNew Zealand FTA

Free Trade Agreement between Australia and the People’s Republic of China, signed 7 April 2008 (entered into force 1 October 2008) 127

EUViet Nam FTA

Free Trade Agreement between the European Union and the Socialist Republic of Vietnam (not yet signed or in force) 196

JAEPA

Agreement between Australia and Japan for an Economic Partnership, signed 8 July 2014 (entered into force 15 January 2015) 8, 35, 45, 56, 69, 84, 85, 87, 88, 89, 90, 92, 96, 97, 98, 99, 105, 107, 109, 110, 111, 114, 115, 126, 127, 129, 130, 132, 142, 144, 145, 146, 147, 150, 153, 154, 157, 158, 172, 177, 178, 197, 201, 203, 206, 228, 229, 231, 232, 233, 238

KAFTA

Korea-Australia Free Trade Agreement, signed 8 April 2014 (entered into force 12 December 2014) 8, 35, 40, 45, 47, 55, 58, 65, 66, 69, 75, 84, 85, 87, 88, 89, 92, 96, 97, 98, 99, 105, 107, 108, 109, 110, 111, 114, 115, 126, 127, 128, 129, 130, 132, 142, 144, 145, 146, 147, 148, 150, 151, 153, 154, 155, 157, 158, 161, 172, 177, 178, 182, 183, 184, 185, 188, 190, 191, 193, 197, 201, 202, 206, 228, 229, 231, 232, 233, 237, 238, 239, 240, 246

MAFTA

Malaysia–Australia Free Trade Agreement, signed 22 May 2012 (entered into force 1 January 2013) 8, 35, 45, 56, 57, 66, 69, 75, 84, 85, 87, 88, 89, 91, 92, 95, 96, 97, 98, 99, 103, 104, 110, 111, 114, 115, 116, 126, 127, 129, 132, 142, 144, 145, 146, 147, 148, 159, 153, 154, 156, 157, 162, 172, 177, 201, 206, 228, 230, 231, 232, 233, 238

NAFTA

North American Free Trade Agreement, signed 17 December 1992 (entered into force 1 January 1994) 29, 31, 39, 87, 131–6, 201, 203–27, 236, 243, 244, 251, 256, 257

SAFTA

Singapore–Australia Free Trade Agreement, signed 17 February 2003 (entered into force 28 July 2003), as amended from 24 February 2006, 13 February 2007, 11 October 2007 and 2 September 2011 and (not yet in force) 13 October 2016 3, 8, 26, 27, 28, 29, 30, 35, 36, 45, 47, 55, 68, 69, 83, 84, 85, 87, 88, 89, 91, 92, 96, 97, 98, 99, 100, 104, 105, 107, 108, 109, 110, 111, 113, 114, 115, 117, 122, 127, 128, 129, 130, 131, 132, 138, 139, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 159, 162, 172, 173, 174, 175, 176, 178, 182, 183, 184, 185, 189, 191, 193, 194, 195, 196, 201, 205, 206, 207, 226, 228, 229, 231, 232, 233, 234, 251

TAFTA

Australia–Thailand Free Trade Agreement, signed 5 July 2004 (entered into force 1 January 2005) 8, 27, 28, 41, 45, 68, 69, 84, 85, 87, 88, 89, 92, 95, 96, 97, 98, 99, 103, 104, 110, 111, 113, 114, 126, 127, 129, 132, 142, 143, 153, 154, 156, 157, 172, 175, 176, 182, 183, 184, 185, 189, 201, 205, 206, 228, 231, 232, 233

TPP

Trans-Pacific Partnership, text released following legal review 26 January 2016, signed 4 February 2016 (not in force) 1, 6, 8, 13, 34, 35, 36, 37, 38, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 54, 55, 56, 65, 66, 68, 69–75, 77, 79, 80, 83, 84, 85, 87, 88, 89, 91, 92, 96, 97, 98, 99, 100, 104, 105, 107, 108, 109, 110, 111, 113, 114, 115, 116, 117, 120, 122, 126, 127, 128, 129, 130, 132, 138, 139, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 157, 158, 159, 163, 170, 171, 173, 180, 181, 182, 183, 184, 185, 189, 191, 193, 194, 195, 197, 198, 201, 202, 206, 207, 226, 228, 229, 231, 232, 233, 234, 237, 238, 239, 240, 245, 246, 247, 251, 252, 254, 255

USChile FTA

United States–Chile Free Trade Agreement, signed 6 June 2003 (entered into force 1 January 2004) 47

USKorea FTA

Free Trade Agreement between the United States of America and the Republic of Korea, signed 30 June 2007 (entered into force 15 March 2012) 47

USOman FTA

Agreement between the Government of the United States of America and the Government of the Sultanate of Oman on the Establishment of a Free Trade Area, signed 19 January 2006 (entered into force 1 January 2009) 235

USSingapore FTA

United States–Singapore Free Trade Agreement, signed 6 June 2003 (entered into force 1 January 2004) 47

BILATERAL INVESTMENT TREATIES

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Argentina–Spain BIT

Agreement between Argentina and Spain for the Promotion and Reciprocal Protection of Investments, signed 3 October 1991 (entered into force 28 September 1992) 127

Australia–Argentina BIT

Agreement between the Government of Australia and the Government of the Argentine Republic on the Promotion and Protection of Investments, and Protocol, signed 23 August 1995 (entered into force 11 January 1997) 17, 124, 131, 206

Australia–Chile BIT

Agreement between the Government of Australia and the Government of the Republic of Chile on the Reciprocal Promotion and Protection of Investments, signed 9 July 1996 (entered into force 18 November 1999, terminated 6 March 2009 by ACIFTA annex 10-E) 17, 123, 165

Australia–China BIT

Agreement between the Government of Australia and the Government of the People’s Republic of China on the Reciprocal Encouragement and Protection of Investments, signed 11 July 1988 (entered into force 11 July 1988) 17, 22, 125, 131, 132, 133, 135, 166, 179, 204, 205, 250

Australia–Czech Republic BIT

Agreement between Australia and the Czech Republic on the Reciprocal Promotion and Protection of Investments, signed 30 September 1993 (entered into force 29 June 1994) 16, 17, 205

Australia–Egypt BIT

Agreement between the Government of Australia and the Government of the Arab Republic of Egypt on the Promotion and Protection of Investments, signed 3 May 2001 (entered into force 5 September 2002) 17, 140, 141, 205

Australia–Hong Kong BIT

Agreement between the Government of Hong Kong and the Government of Australia for the Promotion and Protection of Investments, 15 September 1993 (entered into force 15 October 1993) 17, 32, 63, 123, 131, 137, 164, 206

Australia–Hungary BIT

Agreement between Australia and the Republic of Hungary on the Reciprocal Promotion and Protection of Investments, signed 15 August 1991 (entered into force 10 May 1992) 17, 131, 205

Australia–India BIT

Agreement between the Government of Australia and the Government of the Republic of India on the Promotion and Protection of Investments, signed 26 February 1999 (entered into force 4 May 2000, unilaterally terminated by India as of 23 March 2017) 17, 123, 131, 155, 165, 170, 171, 228

Australia–Indonesia BIT

Agreement between the Government of Australia and the Government of the Republic of Indonesia concerning the Promotion and Protection of Investments, signed 17 November 1992 (entered into force 29 July 1993) 17, 131, 165, 167, 168, 169, 170, 205

Australia–Lao PDR BIT

Agreement between Australia and the Lao People’s Democratic Republic on the Reciprocal Promotion and Protection of Investments, signed 6 April 1994 (entered into force 8 April 1995) 16, 17, 205

Australia–Lithuania BIT

Agreement between the Government of the Republic of Lithuania and the Government of Australia on the Promotion and Protection of Investments, signed 24 November 1998 (entered into force 10 May 2002 17, 205

Australia-Mexico BIT

Agreement between the Government of Australia and the Government of the United Mexican States on the Promotion and Reciprocal Protection of Investments, signed 23 August 2005 (entered into force 21 July 2007) 10, 27, 125, 132, 206

Australia-Pakistan BIT

Agreement between the Islamic Republic of Pakistan and Australia on the Promotion and Protection of Investments, signed 7 February 1998 (entered into force 14 October 1998) 16, 17, 170, 205

Australia-Papua New Guinea BIT

Agreement between the Government of Australia and the Government of the Independent State of Papua New Guinea for the Promotion and Protection of Investments, signed 3 September 1990 (entered into force 20 October 1991) 17, 124, 131, 135, 205

Australia-Peru BIT

Agreement between Australia and the Government of the Republic of Peru on the Promotion and Protection of Investments signed 7 December 1995 (entered into force 2 February 1997) 17, 206

Australia-Philippines BIT

Agreement between the Government of Australia and the Government of the Republic of the Philippines on the Promotion and Protection of Investments, and Protocol, signed 25 January 1995 (entered into force 8 December 1995) 17, 131, 205

Australia-Poland BIT

Agreement between Australia and the Republic of Poland on the Reciprocal Promotion and Protection of Investments, signed 7 May 1991 (entered into force 27 March 1992) 17, 131, 135, 137, 205

Australia-Romania BIT

Agreement between the Government of Australia and the Government of Romania on the Reciprocal Promotion and Protection of Investments, signed 21 June 1993 (entered into force 22 April 1994) 17, 205

Australia-Sri Lanka BIT

Agreement between the Government of Australia and the Government of the Democratic Socialist Republic of Sri Lanka for the Promotion and Protection of Investments, signed 12 November 2002 (entered into force 14 March 2007) 17, 132, 206

Australia-Turkey BIT

Agreement between the Republic of Turkey and Australia on the Reciprocal Promotion and Protection of Investments, signed 16 June 2005 (29 June 2009) 27, 125, 126, 132, 206

Australia-Uruguay BIT

Agreement between Australia and Uruguay on the Promotion and Protection of Investments, signed 3 September 2001 (entered into force 12 December 2002) 17, 205

Australia-Viet Nam BIT

Chile-Spain BIT

Agreement between Australia and the Socialist Republic of Vietnam on the Reciprocal Promotion and Protection of Investments, signed 5 March 1991 (entered into force 11 September 1991) 17, 123, 131, 205

Agreement between Chile and Spain for the Promotion and Reciprocal Protection of Investments, signed 2 October 1991 (entered into force 28 March 1994) 127

France Model BIT (2006)

Draft Agreement between the Government of the Republic of France and the Government of the Republic of ___ on the Reciprocal Promotion and Protection of Investments 136

Germany–Pakistan BIT

Treaty between the Federal Republic of Germany and Pakistan for the Promotion and Protection of Investments, signed 25 November 1959 (entered into force 28 April 1962) 22

India Model BIT (2015)

Model Text for the Indian Bilateral Investment Treaty: Bilateral Investment Treaty between the Government of the Republic of India and ___ (December 2015) 140, 150, 155, 164, 256

Norway Model BIT (2015)

Agreement between the Kingdom of Norway and ___ for the Promotion and Protection of Investments (Draft 13 May 2015) 256

Switzerland-Uruguay BIT

Agreement Between the Swiss Confederation and the Oriental Republic of Uruguay on the Reciprocal Promotion and Protection of Investments, 7 October 1988 (entered into force 22 April 1991) 63, 137

GATT/WTO AGREEMENTS

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DSU

Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) annex 2 (‘Understanding on Rules and Procedures Governing the Settlement of Disputes’) 7, 41, 196

GATS

Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) annex 1B (‘General Agreement on Trade in Services’) 16, 82, 83, 84, 85, 86, 87, 88, 89, 90, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 103, 104, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 156, 160, 207, 227–8, 229, 234, 247, 250

GATT 1947

GATT Doc LT/UR/A-1/A/1/GATT/2, signed 30 October 1947 4, 5, 15

GATT 1994

GATT Doc LT/UR/A-1/A/1/GATT/2, signed 30 October 1947, as incorporated in the Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) annex 1A (‘General Agreement on Tariffs and Trade 1994’) 16, 76, 90, 95, 112, 113, 117, 118, 120, 156, 157, 158, 159, 160, 200, 207, 227–8, 229, 230, 231, 232, 233, 234

Marrakesh Agreement

Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) 8, 9

SPS Agreement

Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) annex 1A (‘Agreement on the Application of Sanitary and Phytosanitary Measures’) 200, 201, 232, 250

TBT Agreement

Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) annex 1A (‘Agreement on Technical Barriers to Trade’) 99, 100, 101, 112, 113, 159, 200, 207, 232, 250

TRIMS Agreement

Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) annex 1A (‘Agreement on Trade-Related Investment Measures’) 90, 91

TRIPS Agreement

Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) annex 1C (‘Agreement on Trade-Related Aspects of Intellectual Property Rights’) 40, 41, 42, 43, 44, 45, 46, 47, 50, 51–5, 60, 61, 62, 65, 66–75, 76, 77, 79, 80, 142, 143, 144, 145, 154, 250

OTHER TREATIES

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Aarhus Protocol

Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution on Persistent Organic Pollutants, opened for signature 24 June 1998, 2230 UNTS 79 (entered into force 23 October 2003) 214

Berne Convention (1971)

Paris Act Relating to the Berne Convention for the Protection of Literary and Artistic Works, opened for signature 24 July 1971, 1161 UNTS 30 (entered into force 10 October 1974) 45, 46, 54

CITES

Convention on International Trade in Endangered Species of Wild Fauna and Flora, opened for signature 3 March 1973, 993 UNTS 243 (entered into force 1 July 1975) 240

ICSID Convention

Convention on the Settlement of Investment Disputes between States and Nationals of Other States, opened for signature 18 March 1965, 575 UNTS 159 (entered into force 14 October 1966) 2, 12, 165, 166, 167, 169, 170, 171, 172, 173, 242

MARPOL

International Convention for the Prevention of Pollution from Ships, opened for signature 2 November 1973, 1340 UNTS 184 (entered into force 2 October 1983) 240

Mauritius Convention

United Nations Convention on Transparency in Treaty-Based Investor-State Arbitration, opened for signature 17 March 2015 (entry into force 18 October 2017) 148, 186, 187, 188, 197, 248

Montreal Protocol

Montreal Protocol on Substances that Deplete the Ozone Layer, opened for signature 16 September 1987, 1522 UNTS 28 (entered into force 1 January 1989) 240

Stockholm Convention

Stockholm Convention on Persistent Organic Pollutants, opened for signature 22 May 2001, 2256 UNTS 119 (entered into force 17 May 2004) 214

VCLT

Vienna Convention on the Law of Treaties, opened for signature 22 May 1969, 1155 UNTS 331 (entered into force 27 January 1980) 41, 53, 55, 159, 161, 168, 179, 249, 250

WHO FCTC

WHO Framework Convention on Tobacco Control, opened for signature 16 June 2003, 2302 UNTS 166 (entered into force 27 February 2005) 59