Asian Perspectives on Investment Agreements and Arbitration : An Evolving Marcottage

With the evolution of Asia's investment policy-making, Asian States may no longer support conventional paradigms of ISDS, but a desire for a fresh review and reform of the International Investment Agreements (‘IAA') regime and ISA (‘Investor- State Arbitration') in keeping with the United Nations Conference on Trade and Development (‘UNCTAD's) call for a “comprehensive reorientation”. This article does not attempt to ascribe a general conclusion to all Asian States. Rather, on the basis of selected contemporary developments in the Asia-Pacific – namely, in Indonesia, India, Australia, China, and Singapore – this article argues that some of UNCTAD's pathways are identifiable; albeit with individual flourishes which merit attention. In particular, there may be a useful distinction to be drawn between a spur of the moment ‘reaction' on the one hand, and attempts at ‘refinement' on the other. Some of the national shifts I shall go on to discuss evince reactions to specific events and arbitral decisions, but in other instances we see a gradual and continued process of refinement rather than the total rejection of ISDS. Ultimately, the resultant marcottage in Asia is an evolving one which should not be polemically type-cast as one that is ‘for' or ‘against' ISA. Investment lawyers and scholars should be attuned to these flourishes and national shifts evidenced in the various forms of State practice, including official declarations and statements, new IIAs, domestic investment laws, draft model BITs, and cross-regional agreements (such as the TPP), when analysing and advising on the state of play of ISA and ‘new generation' investment protections in these Asian States