Foreign investment and dispute resolution law and practice in Asia PDF
Preview Foreign investment and dispute resolution law and practice in Asia
ROUTLEDGE RESEARCH IN INTERNATIONAL ECONOMIC LAW Foreign Investment and Dispute Resolution Law and Practice in Asia Edited by Vivienne Bath and Luke Nottage Foreign Investment and Dispute Resolution Law and Practice in Asia This book con siders foreign investment flows in major Asian eco nom ies. It crit ically assesses the patterns and issues involved in the substantive law and pol icy envir on ment which impact on investment flows, as well as the related dispute res olu tion law and practice. The book combines insights from inter na tional law and comparative study and is attentive to the socio economic con texts and competing theories of the role of law in Asia. Contributions come from both aca demics with con sider able prac tical expertise and legal practitioners with strong aca demic backgrounds. The chapters ana lyse the law and practice of investment treati es and FDI regimes in Asia looking spe cifically at de velopments in Japan, India, China, Indonesia, Malaysia, Korea and Vietnam. The book ex plores the impact of the Asian Financial Crisis in the late 1990s and the Global Financial Crisis a decade later, examining actual trends and poli cy debates relating to FDI and capital flows in Asia before and after those upheavals. Foreign Investment and Dispute Resolution Law and Practice in Asia is a valu able resource for practitioners, aca demics and students of International and Comparative Law, Business and Finance Law, Business, Finance and Asian Studies. Vivienne Bath special ises in Chinese law and trans national business law. She is Associate Professor at the University of Sydney Law School and Direc tor of its Centre for Asian and Pacific Law. She has also practised for 20 years in cross border commercial and investment law, based in Sydney, New York and Hong Kong. Luke Nottage speciali ses in comparative and transn ational business law. He is Associate Professor at the University of Sydney Law School, Associate Director of its Centre for Asian and Pacific Law, Co Director of the Austral ian Netwo rk for Jap an ese Law, and Director of Jap an ese Law Links Pty Ltd. Routledge Research in International Economic Law Available: Recognition and Regulation of Safeguard Measures Under GATT/WTO Sheela Rai The Interaction between WTO Law and External International Law The Constrained Openness of WTO Law Ronnie R.F. Yearwood Human Rights, Natural Resource and Investment Law in a Globalised World Shades of Grey in the Shadow of the Law Lorenzo Cotula The Domestic Politics of Negotiating International Trade Intellectual Property Rights in USColombia and USPeru Free Trade Agreements Johanna von Braun Foreign Investment and Dispute Resolution Law and Practice in Asia Vivienne Bath and Luke Nottage (eds.) Forthcoming: Improving International Investment Agreements Armand De Mestral and Céline Lévesque (eds.) Trade Remedies A Devel opment Perspective Asif Qureshi Foreign Investment and Dispute Resolution Law and Practice in Asia Edited by Vivienne Bath and Luke Nottage First published 2011 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN Simultaneously published in the USA and Canada by Routledge 711 Third Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2011 selection and editorial material, Vivienne Bath and Luke Nottage; individual chapters, the contributors. The right of Vivienne Bath and Luke Nottage to be identified as the editors of this work has been asserted by them in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilized in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging in Publication Data Foreign investment and dispute resolution law and practice in Asia / [edited by] Vivienne Bath, Luke Nottage. p. cm. – (Routledge research in international economic law) Includes bibliographical references and index. 1. Investments, Foreign–Law and legislation–Asia. 2. Dispute resolution (Law)–Asia. I. Bath, Vivienne. II. Nottage, Luke. KNC747.F668 2011 346.5'092–dc23 2011021923 ISBN: 9780415610742 (hbk) ISBN: 9780203155530 (ebk) Typeset in Garamond by Wearset Ltd, Boldon, Tyne and Wear Contents List of figures and tables vii List of contributors viii Preface xiii Acknowledgements and note on style xv List of abbreviations xvii 1 Foreign investment and dispute resolution law and practice in Asia: an overview 1 VIVIeNNe BATH AND LUKe NOTTAGe 2 Investment arbitration in Asia: five perspectives on law and practice 25 LUKe NOTTAGe AND J. ROMeSH WeeRAMANTRY 3 A passive player in international investment law: typically Japanese? 53 SHOTARO HAMAMOTO 4 The quandary for Chinese regulators: controlling the flow of investment into and out of China 68 VIVIeNNe BATH 5 Chinese investment treaties: a procedural perspective 90 NILS eLIASSON 6 Foreign investment in Indonesia: the problem of legal uncertainty 112 SIMON BUTT vi Contents 7 The Japan–Indonesia economic partnership agreement: an energy security perspective 135 SITA SITAReSMI 8 Foreign investment laws and the role of FDI in Malaysia’s ‘new’ economic model 153 SALIM FARRAR 9 Treaty definitions of ‘investment’ and the role of economic development: a critical analysis of the Malaysian Historical Salvors cases 174 GOVeRT COPPeNS 10 The ‘object and purpose’ of Indian international investment agreements: failing to balance investment protection and regulatory power 192 PRABHASH RANJAN 11 The evolution of Korea’s modern investment treaties and investor- state dispute settlement provisions 211 JOONGI KIM 12 Legal issues in Vietnam’s FDI law: protections under domestic law, bilateral investment treaties and sovereign guarantees 225 HOP DANG 13 Review of Asian views on foreign investment law 242 M. SORNARAJAH Index 255 Figures and tables Figures 1.1 Total trade in merchandise and ser vices, eastern, Southern and South eastern Asia: exports (US$ millions) 4 2.1 Respondent states (by region) in concluded and pending ICSID arbit ra tions 26 2.2 ICSID claims filed against State respondents from Asia and the rest of the world 27 2.3 Investment inflows (US$ millions, by region) 29 2.4 ICSID settlement rate of state respondents by region 33 2.5 Numbers of arbitrators (by nationality) appointed in concluded ICSID arbit ra tions 37 3.1 Japan’s goods and income balance (in ¥100 million) 54 6.1 FDI inflows in Indonesia (US$ millions) 113 Tables 2.A Respondent states (by region) in concluded and pending ICSID arbit ra tions 41 2.B Respondent states (by region) in concluded and pending ICSID arbit ra tions – differentiating Argentina and Mexico 41 2.C Investment inflows (US$ million, by region) 42 2.F Numbers of arbitrators (by nationality) appointed in concluded ICSID arbit ra tions 45 3.A Japan’s BITs and ePAs 62 3.B Japan’s inward FDI (stock) (in US$ million) 63 3.C Japan’s outward FDI (stock) (in US$ million) 63 6.A Indonesia’s BITs 129–30 7.A Indonesia’s list of reser va tions for existing non conforming meas ures on energy sectors 145 8.A Global rankings for ease of doing business 167 12.A Differences between Vietnam’s 2003 Arbitration Ordinance and 2010 Law on Arbitration 236 Contributors Editors Vivienne Bath (BA (Hons)/LLB (Hons) ANU, LLM, Harv) is Associate Professor, Faculty of Law, University of Sydney (Sydney Law School), and Director of the Centre for Asian and Pacific Law at the University of Sydney. Prior to joining the Faculty of Law, she was a partner of inter na tional firm Coudert Brothers, working in the Hong Kong and Sydney offices, and specializing in commercial law, with a focus on foreign invest ment and commercial transactions in the People’s Repub lic of China. She previously practised as a commercial lawyer in New York and Sydney. Vivienne special izes in Chinese law and cross border commercial law and has published widely in these areas. She is a co author with Robin Bur nett of Law of International Business in Australasia (Federation Press, 2009). Vivienne speaks Chinese and German. Luke Nottage (BCA/LLB/PhD, VUW; LLM, Kyoto) is Associate Professor at Sydney Law School, founding Co Director of the Australian Network for Jap an ese Law, and Program Director (Comparative and Global Law) at the Sydney Centre for International Law. He lectures, writes and con sults world wide in the fields of contract law, product liabil ity and safety regulation, civil dispute reso lu tion (espe cially arbit ra tion), corporate governance, and cyber law, mostly comparing de velopments in Japan or trans nationally. Luke has produced eight books and over 100 chapters or major art icles, mostly in english and Jap an ese, and con trib utes to three looseleaf commentaries. Luke serves on the Rules Committee of the Aus tralian Centre for International Commercial Arbitration (ACICA), has lectured and written for the Chartered Institute of Arbitrators (CIArb), and was a founding member of the Australasian Forum for International Arbitration (AFIA). Since 1990 Luke has worked closely with law firms and c om panies in New Zealand, Japan, Australia and the US in cross border dispute reso lu tion and transaction planning, and he is a founding Director of Jap an ese Law Links Pty Ltd. Contributors ix Contributors Simon Butt (BA (Hons)/LLB (Hons), ANU; PhD, Melbourne) is Senior Lec turer, Sydney Law School, and Associate Director of the Centre for Asian and Pacific Law. Prior to joining the University of Sydney, Simon worked as a consultant on the Indonesian legal sys tem to the Australian gov ern ment, the private sector and intern a tional organ iza tions, including the United Nations Development Programme (UNDP) and the Interna tional Commission of Jurists (ICJ). He has taught in over 70 law courses in Indonesia on a diverse range of topics, including intellectual prope rty, Indonesian criminal law, Indonesian terrorism law and legisl at ive draft ing. He is fluent in Indonesian. Govert Coppens (Cand. Laws/MLaws, Leuven) is completing a PhD at the University of Leuven, Belgium. His research focuses on jurisdictional mat ters in investment law and intern a tional investment arbitr a tion. He holds a Diploma in Legal Studies with Distinction from King’s College, London, and a Certificate of Public International Law from The Hague Academy of International Law. Govert has also worked as an intern for various inter na tional law firms. Hop Dang (BA/LLB, Hanoi; LLB, Bond; LLM, Melb; DPhil, Oxon) is a part ner in the Hanoi office of Allens Arthur Robinson, a leading regional law firm in South Asia. Hop practises mainly in Vietnam where he has exten sive ex peri ence and expertise in representing foreign investors in negoti ating inter na tionally en force able agreements with Vietnamese partners and the Vietnamese Government. Hop’s doctoral thesis focused on inter na tional investment law and he has published widely. He has taught courses at law schools in Vietnam, Singapore and Australia, and is a Visit ing Senior Fellow at the University of New South Wales and at the National University of Singapore. He is a Fellow of the Singapore Insti tute of Arbitrators and an Arbitrator at the Singapore International Arbi tration Centre, the Kuala Lumpur Regional Centre for Arbitration and the Pacific International Arbitration Centre in Vietnam. Nils Eliasson (LLM/PhD, Lund) special izes in inter na tional commercial arbit ra tion and investment treaty arbit ra tion. Based in Hong Kong, Nils is respons ible for Mannheimer Swartling’s Asian dispute reso lu tion prac tice. He has acted as counsel in disputes enc om passing energy, oil and gas, real estate, construction, engineering, licence disputes, mergers and acquisitions, insurance, and other areas. Nils has repres ented clients before arbit ral tri bu nals in various jurisdictions, and has ex peri ence in conduct ing arb it ra tions under the auspices of most major arbit ra tion institutes as well as ad hoc proceedings under the UNCITRAL Arbitration Rules. He has also acted as counsel for investors and states in a number of invest ment arbit ra tions under bi lat eral investment treati es as well as under the energy Charter Treaty. Nils has written many art icles and other works
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