[1] Although the scope for different interpretations can never be removed entirely. [2] In fact, it is interesting that there were not more exclusions of ISDS by side letter particularly as between the United States and Australia who excluded ISDS from the Australia-US FTA (2005) reportedly on the basis that the countries had strong trust in each other’s legal system. [3] Australia and New Zealand have agreed to recognise and enforce judgments of the other’s courts in its territory pursuant to the Agreement between the Government of Australia and the Government of New Zealand on Trans-Tasman Court Proceedings and Regulatory Enforcement (2008). [4] The TPP is open to accession by other countries: Article 30.4 of the TPP. Indonesia’s President, for example, has declared that Indonesia intends to join the TPP. [5] Australia formally signed the TPP in New Zealand on 4 February 2016. [6] TPP, Article 30.5. [7] See: the ASEAN-Australia-New Zealand Free Trade Agreement (2009) (the ASEAN countries are Brunei, Myanmar, Cambodia, Indonesia, Laos, Malaysia, the Philippines, Singapore, Thailand, and Vietnam); the Australia-Chile Free Trade Agreement (2009); the Agreement between Australia and Japan for an Economic Partnership (2014); the Malaysia-Australia Free Trade Agreement (2012); the Agreement between the Government of Australia and the Government of the United Mexican States and on the Promotion and Reciprocal Protection of Investments (2007); the Agreement between Australia and the Government of the Republic of Peru on the Promotion and Protection of Investments (1997); the Singapore-Australia Free Trade Agreement (2003); the Australia-United States Free Trade Agreement (2005). [8] Vienna Convention on the Law of Treaties (1969), Article 31. [9] See e.g. Siemens AG v The Argentine Republic, ICSID Case No. ARB/02/8, Decision on Jurisdiction, [81]. [10] TPP, Article 9.1. [11] TPP, Article 1.3. [12] TPP, Article 9.1. [13] Some agreements, such as the Agreement between Australia and Japan for an Economic Partnership (2014), give definition to “owned” and “controlled”. The TPP does not do so expressly. [14] Governed by the US Treasury Department’s Iranian Transactions and Sanctions Regulations. [15] Defined broadly to include citizens, permanent residents, US entities and their foreign branches, and foreign persons while in the US. [16] Plama Consortium Limited v. Republic of Bulgaria, ICSID Case No. ARB/03/24, Decision on Jurisdiction, 8 February 2005. [17] TPP, Article 9.1. [18] It appears, for example, in the Australia-US FTA, the Australia-Chile FTA and the Agreement between Australia and Japan. [19] Footnote 17. [20] Although see also Article 5 of the Netherlands-Czech Republic BIT; Article 4 of the Czech and Slovak Federal Republic - Sweden BIT; Article 4 of the Sweden - Republic of South Africa BIT. [21] See e.g. S.D. Myers v Canada, Partial Award, 13 November 2000. Andrew Newcombe contends that a State act which does not involve an acquisition should not be regarded as an expropriation: “The Boundaries of Regulatory Expropriation in International Law”, ICSID Review – Foreign Investment Law Journal 1. [22] The tribunal in CME (Netherlands) v Czech Republic (Partial Award, 13 September 2001) considered the meaning of “deprivation” in Article 5 of the Netherlands-Czech Republic BIT and said (at [150] and [151]): “The Treaty’s provision regarding ‘deprivation’ tracks the broadest expropriation provisions in bilateral investment treaties... A ‘deprivation’ ... occurs ... whenever a State takes steps ‘that effectively neutralize the benefit of the property for the foreign owner.’ Such expropriations may be deemed to have occurred regardless of whether the State ‘takes’ or transfers legal title to the investment...The Treaty avoids any narrow definition of expropriation in part by avoiding the use of that word altogether. The Treaty focuses on the interference in the investor’s ownership, rather than any transfer of the investment to the State, by prohibiting ‘deprivations’ rather than ‘takings’.” [23] ICSID Case No ARB/03/16. [24] The claim was brought under the Cyprus-Hungary BIT. [25]Andrew Newcombe and Lluis Paradell, Law and Practice of Investment Treaties: Standards of Treatment (Kluwer Law International, 2009) at [7.32]. [26] Ibid. [27] Siemens AG v The Argentine Republic ICSID Case No ARB/02/8 at [273] (the context being Argentina’s fiscal crisis). [28] ICSID Case No ARB/03/16. [29] ICSID Case No ARB/02/8. [30] The Annex is said to constitute “an integral part” of the TPP: Article 30.1. [31] See Treaty between the Government of the United States of America and the Government of [Country] Concerning the Reciprocal Protection of Investment (US Model BIT), Art 6(1) and Annex B(4), (2004); Agreement between Canada and [Country] for the Promotion and Protection of Investments (Canada Model BIT), Art 13 and Annex B.13(1) (2004). Very similar annexes can also be found in the Australia-United States FTA, the ASEAN-Australia-New Zealand FTA, the Australia-Chile FTA, the Malaysia-Australia FTA, and the Korea-Australia FTA. [32] Accepted by the ICSID Tribunal in Compania del Desarrollo de Santa Elena v Costa Rica ICSID Case No ARB/96/1 (17 February 2000). [33] TPP, Annex 9-B, footnote 36. [34] Stephenson and Carroll, “Protecting Foreign Investments by using Bilateral Investment Treaties” (2011) 30 Australian Resources and Energy Law Journal 40. [35] Tecnicas Medioambientales Tecmed SA v The United Mexican States, Case No ARB(AF)/00/2, Award 29 May 2003. [36] At [122]. [37] TPP, Annex 9-B, footnote 37. [38] For example, the Australian claimant in White Industries