22 - Rebalancing Investment Treaties and Investor–State Arbitration in the Asian Region

Summary

Asian economies are attempting to (re)balance their interests in fostering burgeoning outbound investment and attracting inbound investment, while preserving appropriate regulatory autonomy, while maintaining an attractive environment for foreign investors. To understand the issues and the likely future trajectory for international investment law in the region, this chapter first introduces Poulsen’s comprehensive recent study focusing on the experiences of developing countries world-wide, but including analyses of several Asian states (as outlined in Part 2 below). Despite marshalling powerful arguments and evidence for manifestations of ‘bounded rationality’ in BIT negotiations and drafting, some limits to his theory are suggested by a closer analysis of several countries in the region (Part 3). Given such historical experiences, it seems premature to abandon altogether the current treaty protection regime. Nonetheless, a combination of new approaches is worth considering under existing treaties, including more principled use of proportionality testing and deference to host state decision-making (Part 4.1). Greater care is also needed when assessing the net benefits from entering into new treaties, including the latest research into whether investor-state dispute settlement provisions lead to significantly greater cross-border investment (Part 4.2).