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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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Chapter 4: Investment: Haphazard Responses to Expansive Obligations

The Evolution of Australian Policy on Trade and Investment

Andrew D. Mitchell, Elizabeth Sheargold and Tania Voon

Extract

This chapter surveys Australia’s investment obligations under international investment agreements, in the form of bilateral investment treaties and preferential trade agreements that contain investment chapters. Leaving investor-State dispute settlement aside for discussion in Chapter 5, this chapter focuses on key standards of investment protection: most-favoured nation treatment, the minimum standard of treatment (incorporating fair and equitable treatment), and expropriation. The chapter also considers exceptions to these obligations in the form of specified non-conforming measures and general exception provisions. The chapter highlights inconsistencies between Australia’s treaties and areas in which greater certainty could be achieved through treaty drafting to circumscribe obligations and provide exceptions for legitimate regulations, particularly in view of expansive interpretations of investment treaty provisions by past investment treaty tribunals. The chapter provides concrete recommendations for these proposed improvements. Keywords: expropriation, fair and equitable treatment, international economic law, investment, public law, trade

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