The full text of the China - Australia FTA is out. The investment chapter is here. It is really interesting what they have done. They include the usual national treatment and MFN provisions, but then that's about it for obligations, at least for now. For everything else, there is a "future work program":
ARTICLE 9.9: FUTURE WORK PROGRAM
1. Unless the Parties otherwise agree, the Parties shall conduct a review of the investment legal framework between them no later than three years after the date of entry into force of this Agreement.
2. The review shall include consideration of this Chapter and the Agreement between the Government of Australia and the Government of the People’s Republic of China on the Reciprocal Encouragement and Protection of Investments.
3. Unless the Parties otherwise agree, the Parties shall commence negotiations on a comprehensive Investment Chapter, reflecting outcomes of the review referred to in paragraphs 1 and 2, immediately after such review is completed. The negotiations shall include, but are not limited to, the following:
(a) amendments to Articles included in this Chapter;
(b) the inclusion of additional Articles in this Chapter, including Articles addressing:
(i) Minimum Standard of Treatment;
(ii) Expropriation;
(iii) Transfers;
(iv) Performance Requirements;
(v) Senior Management and Board of Directors;
(vi) Investment-specific State to State Dispute Settlement; and
(vii) The application of investment protections and ISDS to services supplied through commercial presence; and
(c) scheduling of investment commitments by China on a negative list basis
Also worth noting is that there is a general exceptions provisions.
From my perspective, this is a huge improvement over the scope of typical investment obligations. Non-discrimination provisions are -- or should be, if interpreted properly -- useful and safe; the rest is causing most of the controversy and needs some re-thinking.
Could this approach spread to some of the other countries who are agonizing about ISDS right now?
