Table Of ContentROUTLEDGE 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
