[38] For example, the Australian claimant in White Industries Australia Ltd v India (UNCITRAL Award, 30 November 2011) used the MFN clause in the Australia-India clause to import substantive protections from another Indian BIT (the Kuwait-India BIT), guaranteeing the claimant “effective means of asserting claims and enforcing rights”. [39] For example, in CME Czech Republic BV v Czech Republic (UNCITRAL Award, 14 March 2003) the tribunal allowed the claimant to use the MFN clause in the Czech Republic-Netherlands BIT to import a more favourable definition of “just compensation” from another Czech BIT (the US-Czech BIT). [40] For example, in Maffezini v Spain (ICSID Case No ARB/97/7), the claimant sought to avoid submitting the dispute to the Spanish courts for 18 months as mandated by the Argentina-Spain BIT before resorting to international arbitration by importing the dispute settlement provision from the Chile-Spain BIT which only required the claimant to observe a six month negotiation period before filing for arbitration. [41] A tobacco control measure is defined as a measure related to the production or consumption of manufactured tobacco products (including products made or derived from tobacco), their distribution, labelling, packaging, advertising, marketing, promotion, sale, purchase, or use, as well as enforcement measures, such as inspection, record-keeping, and reporting requirements. A measure with respect to tobacco leaf that is not in the possession of a manufacturer of tobacco products or that is not part of a manufactured tobacco product is not a tobacco control measure. [42] See e.g. the ASEAN-Australia-New Zealand Free Trade Agreement (2009); the Australia-Chile Free Trade Agreement (2009); 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). [43] TPP, Article 9.20(1). [44] Under Australia’s existing investment agreements with the TPP member countries, the limitation period ranges from 3 to 4 years. [45] TPP, Article 9.20(2). Such a waiver is also required under the ASEAN-Australia-New Zealand Free Trade Agreement (2009); 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); and the Singapore-Australia Free Trade Agreement (2003). [46] TPP, Article 9.22(4). [47] TPP, Article 9.22(6). [48] TPP, Article 9.22(7). [49] Compare the provisions in the ASEAN-Australia-New Zealand Free Trade Agreement (2009) in which transparency is optional only. [50] Specifically, the Trans-Pacific Partnership Commission, which is composed of government representatives of each Party. [51] TPP, Article 9.25. [52] TPP, Article 9.21.6. [53] TPP, Article 9.22.11.
About the Authors
Andrew Stephenson (Partner)
Andrew Stephenson is one of Australia’s leading projects lawyers with a particular focus on matters involving technology, engineering, construction, infrastructure and international arbitration. He advises clients in respect of contractual project risk allocation, dispute management and dispute resolution.
Lee Carroll (Special Counsel)
Known for her ability to provide concise and strategic legal advice, Lee demonstrates a thorough understanding of the law as it relates to arbitration and complex dispute processes.
To learn more about Andrew and lee, visit the firm's website: www.corrs.com.au.