We discussed what Australia's Productivity Commission thought of ISDS back here. Now they have something more to say, but I couldn't do anywhere near as good a job explaining it as Esme Shirlow did over at the Kluwer Arbitration Blog. Here's an excerpt, but the whole thing is worth a read:
On 24 June 2015, the Australian Productivity Commission released its eighteenth Trade and Assistance Review 2013-14.
The Commission is an independent research and advisory body, with statutory authority to report annually on the economic impacts of Australia’s international trade policy. As readers of this blog may recall, in previous years the Commission’s Review has influenced the Australian Government’s approach to the negotiation of trade and investment treaties. Most notably, the Commission’s 2010 Review prompted the then-Labor Government to adopt a policy against the inclusion of investor‑State dispute settlement (ISDS) clauses in future trade and investment treaties. This policy was reversed by the Liberal Government in 2013. An attempt to introduce a legislative ban on the negotiation of such provisions was rejected in 2014 (see, further, this 2014 post by Luke Nottage).
The Commission Remains Opposed to the Inclusion of ISDS Provisions in Australia’s Treaties
The Commission’s 2013-2014 Review expresses the Commission’s continued opposition to the negotiation and inclusion of ISDS clauses in Australia’s trade and investment treaties.
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There is little doubt that the Review will be cited heavily in discussions of the TPP in the coming months. As one commentator put it, opponents of the TPP:
…were delivered a beautifully timed snippet of academic firepower last week in the form of an annual trade and assistance review from the Productivity Commission.
While the Review will no doubt be invoked in such debates, it remains to be seen what effect (if any) it will have on the Australian Government’s approach to the TPP negotiations or, indeed, the content or negotiation of future investment and trade treaties.
