The ASEAN Comprehensive Investment Agreement: The Regionalisation of Laws and Policy on Foreign Investment.
The ASEAN grand experiment of moving gradually but consistently towards regional integration often receives little attention outside the Asian region. The determined negotiation and implementation of a consistent legal framework within the region is, however, not only important for ASEAN states, their neighbours and their trade and investment partners, but also constitutes an interesting and potentially important example of the establishment of a legally binding regime designed to suit the often disparate purposes of states with different histories and legal systems. The ASEAN Comprehensive Investment Agreement (ACIA), as the authors point out in their introduction, represents an attempt to achieve a number of important economic purposes: investment liberalization; investment protection within the ASEAN region and protection for other investors; the provision of a viable method of dispute resolution relating to investment disputes; and commitment to principles of transparency and equitable treatment. This book provides a comprehensive discussion of the purpose and content of the ACIA in a clearly presented and accessible fashion which constitutes a useful addition to the existing literature on the ACIA and ASEAN investment treaty practice.
The book divides the discussion into a number of parts: "Mapping the Growth of the International Law of Foreign Investment in the Asia-Pacific Region" (Part I); "ACIA as a milestone in ASEAN History" (Part II); "The Substantive Regime of the ACIA" (Part III); "Access to Dispute Settlement Mechanisms" (Part IV); and "Emergence of an ASEAN External Investment Policy" (Part V). As one would expect, the meat of the discussion is contained in Parts III and IV. The General Introduction provides a good general background on ASEAN as an investment destination; and Chapter 2, which deals with ASEAN institutions and foreign investment policies, presents some interesting issues which are specific to ASEAN. No doubt for reasons of space, the discussion on the role of international investment agreements in ASEAN was rather brief, although interesting. More could, however, have been made in the discussion of the practical effect of the disparities between the various ASEAN economies and the effect which this has on overall investment policy.
Chapters 3 and 4 provide a brief analysis of investment-treaty making practice in and by the Asian economies, and the growth of free trade agreements with the ASEAN states, as well as the mega-regionals. Again, these chapters are informative, but brief. Chapter 4 contains an interesting discussion of ASEAN's regional agreements, although the book was published before the effective collapse of the Trans-Pacific Partnership (TPP).
Part II of the book aims to set the ACIA in its historical context historical, as well as providing background on the complex national and intra-ASEAN regulatory and legal issues relating to investment. It highlights the fact that the ACIA should be seen in the context of related and parallel developments in terms of trade in goods and agreements on services. Chapter 5 also provides a very useful shorthand overview and summary of the elements and characteristics of the ACIA, which is supported by the brief but useful overview in Chapter 6 of the national investment policies and the role and responsibility of regulators which continue to underpin investment in the ASEAN countries. In particular, the brief description of the degree of investment liberalization of the individual ASEAN states, when combined with their varying, but often restrictive policies in relation to the admission of investment provides very useful background for persons seeking to understand the compromises that were reached in negotiating the ACIA and the reasons for what would appear to an outside observer to be relatively limited steps towards investment liberalization within the region.
Part III, which deals with the substantive provisions of the ACIA, commences with a discussion of investment liberalization under the agreement. A slightly disappointing feature of Chapter 7 and the overall discussion is the decision not to discuss the content of the individual state reservation lists which set out the decisions of each state as to which parts of the economy it wishes to exempt from the scope of liberalization. However, some interesting examples are found in the table on pp. 113-14. In view of the extended timeframe involved in the finalization of these lists, some commentary on their content and the political and practical difficulties experienced in negotiating the lists would have been interesting, particularly in the context of ASEAN's existing agreements and the negotiation of the Regional Comprehensive Economic Partnership. The reservation lists to the investment chapter of the Australia-New Zealand-ASEAN Free Trade Agreement, for example, have apparently not yet been finalized, even though the agreement came into effect in 2010.
This appears to reflect the decision to focus on the content of the ACIA in the context of international investment law as represented by other investment treaties and international case law. Thus the aim was to put the ACIA in its international legal context, and thus to provide assistance to readers in understanding the scope of the provisions and facilitates the comparison of the terms of the ACIA with other investment agreements. Chapters 8 to 12 and Part IV therefore focus on the text of the ACIA in the context of international and Asian practice. The discussion is well structured and makes it easy for readers, whether they are interested in the general discussion or focused on particular aspects of the ACIA. The inclusion of short summaries on particular points, such as the definition of investments and covered investments is particularly helpful. Generally, the discussion is quite effective in putting particular clauses in the overall investment law context. There are, however, occasions where it would have been useful to the reader if there had been more focus on the ACIA itself than on general law. For example, the discussion on the scope of the most favoured nation clause and the impact on dispute settlement could have looked at ASEAN practice in its free trade agreements. Similarly, a discussion on performance requirements, although informative, would have been more relevant if it had focused on particular issues within ASEAN.
Overall, the structure of attempting to place the ACIA provisions within the context of international commentary and case law is effective and likely to be very helpful to the reader. The discussion in Chapter 10 on the concepts of "fair and equitable treatment" and "full protection and security" and indirect expropriation is a good example of this. Similarly, the provision of examples to illustrate particular points is helpful, although on occasion, the text needs to be clearer as to whether the example is hypothetical or represents an actual case study. On other occasions, however, the discussion would have been assisted by the inclusion of actual examples. For example, the section on the security exception pp. 149-53 could have looked at examples of domestic legislation, if any, which ASEAN states have introduced which have potential national security implications.
Part IV deals with dispute resolution mechanisms under the ACIA, in particular investor-state dispute resolution. The summaries and charts are particularly useful in understanding the many options which are spelt out in the ACIA in relation to dispute resolution. The discussion of existing ASEAN structures, where available, is also useful here, as is the summary of members' commitments to the New York Convention. The discussion on the clause is quite descriptive. Instead of a summary of arbitrations in the larger Asia-Pacific region, however, it might have been useful to look at some of the different arbitration options set out in the dispute resolution clause and, perhaps, the individual experiences of ASEAN states in relation to investment arbitration, which would have allowed for a slightly more detailed analysis of their experiences.
Part V deals with ASEAN's own free trade and investment agreements with Australia and New Zealand, Korea and China. The 2014 Investment Agreement with India, which was signed in 2014 and is not yet in force, is not discussed. Chapter 15 provides a useful comparison of important provisions in these agreements and that in the ACIA, while Chapter 16 deals with the collective operation of these agreements. Although this discussion is informative, it is descriptive rather than analytical and does not fully take up the opportunity to analyse and discuss ASEAN's the content and prospects for ASEAN to have a coherent external investment policy.
In summary, the scope of the book is ambitious. It provides a thoughtful and useful discussion of the content and scope of the ASEAN Comprehensive Investment Agreement, which puts the ACIA in context, both in its role as a regional agreement and in the international investment law setting. The charts, boxes and summaries are particularly helpful to a reader who is unfamiliar with the agreement or who is looking for particular issues on a comparative basis. The other chapters of the book provide some interesting information about ASEAN and its treaty relationships. However, these other chapters are brief and the space available could more usefully have been employed on providing an analytical discussion of issues specifically related to ASEAN than on description. The referencing and footnoting in the book is also inconsistent. Although there are some sections, primarily in the discussion on international investment law, which are very well referenced and footnoted, other parts of the book should have been better referenced. In particular, where discussion was brief due to space constraints, it would have been useful to readers to include more detailed footnotes and references to existing literature on international and Asian treaty practice.
Overall, this book constitutes an interesting and useful addition to the literature in relation to developments in investment treaty practice in the important Asia-Pacific region and will be a helpful resource for students and scholars seeking to understand how the treaty works and the context in which it will operate.
Sydney Law School, Barff Road, The University of Sydney, NSW 2006, Australia
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|Publication:||Journal of Southeast Asian Economies|
|Article Type:||Book review|
|Date:||Aug 1, 2017|
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