Seminar: TPP, Investor-State Dispute Settlement and Intellectual Property
REGIONAL ECONOMIC STUDIES PROGRAMME
AND SINGAPORE APEC STUDY CENTRE SEMINAR
Amongst the two most contentious issues in the Trans-Pacific Partnership (TPP) Agreement are those related to the provisions on investor-state dispute settlement (ISDS) and intellectual property (IP). This seminar will feature the reflections and analyses of two eminent scholars on how the ISDS and IP provisions in TPP will affect Southeast Asian countries.
|9:30 -10:00 am||Registration|
|10:00 -10:30 am||The Impact of TPP Investor-State Dispute Settlement on
|10:30 -11:00 am||Understanding the Trans-Pacific Partnership (TPP) Intellectual Property Landscape and its implications for ASEAN
|11:00 -11:30 pm||Discussions|
The Impact of TPP Investor-State Dispute Settlement on Southeast Asia
Professor Luke NOTTAGE
University of Sydney
The Trans-Pacific Partnership (TPP) Agreement signed in February 2016 by 12 Asia-Pacific economies provides foreign investors with the option of investor-state dispute settlement (ISDS), as well as inter-state arbitration, to enforce substantive provisions on investment liberalisation and protection offered by host states to encourage more inbound investment. Although ISDS creates a more credible enforcement mechanism, concerns have been growing that it leads to too many costly arbitrations that also overly restrict host state regulatory autonomy.
To assess the impact of the TPP’s ISDS provisions, it is useful to consider regional investment trend and the broader ISDS experiences and policy positions on the part of existing signatories from ASEAN member states (Brunei, Malaysia, Singapore and Vietnam), as well as several others that have already indicated interest in joining the TPP after it comes into force (Indonesia, Philippines and Thailand). The first half of the paper shows they have mostly (except for Indonesia) already weathered quite successfully a few initial claims, which otherwise tend statistically to lead to strong adverse reactions in host states. Alternatively, Brunei and Singapore are unlikely to be subjected to ISDS claims and then react strongly against this procedure, meaning a major impact from the TPP provisions.
The second half of the paper examines the ISDS provisions of the TPP, as well as key features of the substantive provisions on investment that the mechanism is designed to enforce, against trends in the past and present treaty practice of the existing and potential ASEAN signatories. The analysis suggests that the TPP provisions are quite similar to those in their recent investment treaties, and indeed often more favourable to host state interests than their earlier standalone Bilateral Investment Treaties. From this perspective too, therefore, the TPP investment chapter may not have such a large adverse impact in Southeast Asia as some commentators have feared.
Nonetheless, the conclusion of the TPP and its potential expansion may cast a large shadow over other FTA negotiations, including the Regional Comprehensive Economic Partnership (ASEAN+6 FTA). There might otherwise be more scope to introduce recent innovations proposed by the EU (including a permanent investment court, instead of ad hoc ISDS tribunals), although Vietnam has already incorporated some into its new bilateral FTA with the EU. The emerging new EU model may represent an even better balance between encouraging and protecting foreign investment and maintaining adequate regulatory autonomy, resulting in maximum net benefits for Southeast Asia.
About the Speaker
Luke Nottage specialises in international arbitration, contract law, consumer product safety law and corporate governance, with a particular interest in the Asia-Pacific region. He is Professor of Comparative and Transnational Business Law at Sydney Law School, founding Co-Director of the Australian Network for Japanese Law (sydney.edu.au/law/anjel), and Associate Director of the Centre for Asian and Pacific Law at the University of Sydney. Luke’s 12 books include International Arbitration in Australia (co-edited with Richard Garnett, Federation Press, 2010), Foreign Investment and Dispute Resolution Law and Practice in Asia (co-edited with Vivienne Bath, Routledge, 2011) and ASEAN Product Liability and Consumer Product Safety Law (co-edited with Sakda Thanitcul, Winyuchon, 2016). Luke is an ACICA Special Associate and founding member of the Rules drafting committee, the Australasian Forum for International Arbitration council’s Japan Representative, and on the panel of arbitrators for the BAC, JCAA, KCAB, KLRCA, SCIA and TAI. Luke has also consulted for law firms world-wide, ASEAN, the EC, OECD, UNCTAD, UNDP and the Japanese government, and is Managing Director of Japanese Law Links Pty Ltd (www.japaneselawlinks.com).
Understanding the Trans-Pacific Partnership (TPP) Intellectual Property Landscape and its implications for ASEAN
Associate Professor Elizabeth Siew-Kuan Ng
National University of Singapore
The Trans-Pacific Partnership (TPP) has added yet another layer of complexity to the international intellectual property (IP) landscape. Concluded more than twenty years after the ground-breaking WTO’s TRIPS Agreement, TPP is part of a new paradigm where consensus on new intellectual property commitments are achieved in the context of trade and investment agreements where intellectual property is often one part of a broader negotiating package. These successive post-TRIPS bilateral and plurilateral instruments have ratcheted intellectual property standards way beyond that originally contemplated in the multilateral TRIPS Agreement. This work evaluates some of the changes that TPP will introduce, particularly in respect of the more controversial areas such as pharmaceuticals/ public health and the digital environment. It will analyse how these TRIP-plus IP provisions will impact on the current ASEAN IP landscape and proffer a potential model on how ASEAN can pursue its quest for an inclusive regional IP regime amidst the currently polarised and fragmented multilateral intellectual property framework.
About the Speaker
Elizabeth Siew-Kuan Ng is the Deputy Chairwoman and Director of Intellectual Property (IP) at the Centre for Law & Business and the Director of the Graduate Certificate in IP (GCIP) program, at the National University of Singapore (NUS) Law School. She has served as amicus curiae to the Singapore Court of Appeal on Intellectual Property matters and is an IP Adjudicator of the Intellectual Property Office of Singapore. She is also the External Academic Adviser on IP at City University of Hong Kong Law School (China), a member of the Advisory Committee and Institutional Review Board of Temasek Polytechnic SAC (Singapore) and a Fellow of the Cambridge Commonwealth Society. Elizabeth is a Barrister-at-Law of the Middle Temple (England), an Advocate and Solicitor of the Supreme Court of Singapore. She graduated with a Bachelor of Laws (Honors) from the University of London’s Queen Mary College where she was awarded the Sweet & Maxwell Law prize and Faculty of Law prize. She later obtained a Master of Laws with First Class from the University of Cambridge on a Cambridge Commonwealth Trust scholarship where she was awarded the Clough prize. She was formerly a consultant of the World Intellectual Property Organization (WIPO) (Geneva) and has held visiting appointments at various international organizations and research institutes etc. including the Max Planck Institute of Intellectual Property (Munich); US Court of Appeal for the Federal Circuit (Washington DC); and EAIEL ICT Research Network (University of Hong Kong, China).