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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 6: Environmental Protection: Moderate Safeguards and Novel Opportunities

The Evolution of Australian Policy on Trade and Investment

Andrew D. Mitchell, Elizabeth Sheargold and Tania Voon

Extract

This chapter considers the extent to which Australia’s preferential trade agreements and bilateral investment treaties preserve the government’s ability to engage in legitimate environmental regulation, by analysing relevant investment treaty disputes brought under Chapter 11 of the North American Free Trade Agreement (NAFTA). The chapter also considers the potential for investor–State dispute settlement as well as environment chapters in Australia’s preferential trade agreements to be used as tools to improve environmental regulation by raising and enforcing environmental standards in domestic law. The chapter concludes that concerns about the impact of trade and investment treaties on environmental regulation may be overstated, although some uncertainties arise from the majority decision in the NAFTA case of Clayton and Bilcon v Canada. The chapter also emphasises the complex relationship between environmental regulation and Australia’s treaties, pointing to the possibility of further use of these treaties in ensuring high environmental standards. Keywords: NAFTA, dispute settlement, environment, investment, regulation, trade

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