IIAs' database analyzed for CGD_2017 version
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AUSTRALIA4
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1. Australia-China FTACLAUSECONTENTSCORECOMMENTS
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PreambleThe FTA's Preamble mentions non-commercial objectives: "Upholding the rights of their governments to regulate in order to meet national policy objectives, and to preserve their flexibility to safeguard public welfare; Desiring to strengthen their economic partnership and further liberalise bilateral trade and investment to bring economic and social benefits, to create new opportunities for employment and to improve the living standards of their peoples".

The FTA's Investment Chapter doesn't have a Preamble, so the FTA's general one is the one analyzed.

Art.9.8: "subject to the requirement that such measures are not applied in a manner which would constitute arbitrary or unjustifiable discrimination between investments or between investors, or a disguised restriction on international trade or investment, nothing in this Agreement shall be construed to prevent a Party from adopting or enforcing measures: (a) necessary to protect human, animal or plant life or health; (b) necessary to ensure compliance with laws and regulations that are not inconsistent with this Agreement; (c) imposed for the protection of national treasures of artistic, historic or archaeological value; or relating to the conservation of living or non-living exhaustible natural resources".
2It is concrete on protecting the State's policy space and extends this protection to issues that can be considered as equivalent to sustainable development or human rights.

Art.9.8 would have also qualified for 2 points, alone.
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FETThis FTA doesn't include an FET provision1
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ISDS2
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IndependenceYes.
Art.9.15.5: The Committee on Investment shall establish a list of individuals who are willing and able to serve as arbitrators (at least 20 individuals).
Art.9.15.8: All arbitrators appointed shall have expertise or experience in public international law, international trade or international investment rules, or the resolution of disputes arising under international trade or international investment agreements. They shall be independent, serve in their individual capacities and not take instructions from any organisation or government with regard to matters related to the dispute, or be affiliated with the government of either Party or any disputing party, and shall comply with Annex 9-A (Code of Conduct).
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FairnessYes.
Important: 9.11.4: Measures of a Party that are non-discriminatory and for the legitimate public welfare objectives of public health, safety, the environment, public morals or public order shall not be the subject of a claim under this Section (the ISDS Section).
9.16.2: The non-disputing Party may make oral and written submissions to the tribunal regarding the interpretation of this Chapter.
Yes
Art.9.22: includes measures to moderate the remedial powers of tribunals in ISDS (monetary damages and restitution of property and excluding punitive damages).
No (but interesting): Within three years after the date of entry into force of this Agreement, the Parties shall commence negotiations with a view to establishing an appellate mechanism to review awards.
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OpennessYes
Art.9.7: A 'Committee on Investment' may (pursuant to Article 9.18.2 or Article 9.19), adopt a joint decision of the Parties, declaring their interpretation of a provision of this Chapter and Annex 9-A. (following art.9.18.2, the interpretation will be binding for the tribunal if there is an agreement between the Parties).
9.12.4.c: under the UNCITRAL Arbitration Rules, (except as modified by this Agreement and the Side Letter on Transparency Rules Applicable to ISDS).
Yes
Art.9.16.3:the tribunal may allow a party or entity that is not a disputing party to file a written amicus curiae submission with the tribunal regarding a matter within the scope of the dispute.
Yes.
Art.9.17.1 and 2: the respondent shall, after receiving (a list of detailed documents) promptly transmit them to the non-disputing Party or make them available to the public.
Yes.
Art.9.17.3: With the agreement of the respondent, the tribunal shall conduct hearings open to the public
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SubsidiarityThe claimant must present a written waiver of any right to initiate or continue before any administrative tribunal or court under the law of either Party, or other dispute settlement procedures, any proceeding with respect to any measure or event alleged to constitute a breach referred to in Article 9.12.2. (National Treatment only, as MFN clause is excluded from ISDS).
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TOTAL5
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JP
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2 (and 4) Australia-Malaysia FTACLAUSECONTENTSCORECOMMENTS
14
PreambleThe FTA's Preamble doesn't mention any non-commercial objective (no mention to sustainable developlment, human rights, social objectives, etc.)
The FTA's Investment Chapter doesn't specify the treaty objectives nor does it mention any public policy or general interest objectives.
Art. 12.18 includes a clear afirmation that the agreement does not prevail States to adopt measures necessary to protect national policy objectives (but without mentioning sustainable development objectives or human rights).
1It is concrete on protecting the State's policy space, but doesn't extend this protection to sustainable development or human rights.
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FETArt.12.7 mentions the minimum standard of treatment for aliens under customary international law (MST/CIL), clarifies with an open definition the States' obligations under this clause (not to deny justice in any legal or administrative proceedings) and that it does not require treatment in addition to or beyond that which is required under customary international law.1By using "require" it has to be understood as "open definition" of FET obligations.
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ISDSN/AAustralia decided not to include ISDS in most of its latest IIAs, including the one with Malayisia.
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Independence
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Fairness
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Openness
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Subsidiarity
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TOTAL2
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3 (and 5). ASEAN, New Zealand, Australia FTACLAUSECONTENTSCORECOMMENTS
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PreambleThe FTA's Preamble and art.1 (FTA's objectives) don't mention any non-commercial objective (no mention to sustainable developlment, human rights, social objectives, etc.)
The FTA's Investment Chapter doesn't specify the treaty objectives nor does it mention any public policy or general interest objectives.
0
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FETArt.6 mentions the minimum standard of treatment under customary international law (MST/CIL) and clarifies with an open definition the States' obligations under this clause (not to deny justice in any legal or administrative proceedings) and that it does not require treatment in addition to or beyond that which is required under customary international law.1By using "require" it has to be understood as "open definition" of FET obligations.
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ISDS1
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IndependenceNo
Art. 23.2: Arbitrators shall have expertise or experience in public international law, international trade or international investment rules, and be independent of, and not be affiliated with or take instructions from the disputing Party, the nondisputing Party, or disputing investor.
Art. 23.5: The disputing parties may establish rules relating to expenses incurred by the tribunal, including arbitrators’
remuneration.
Although art.23.2 is better than nothing, I think it doesn't fulfill our criteria (prohibitions of double dipping as lawyers and arbitrators or the introduction of a code of conduct for arbitrators) as the institutional safeguards of independence are missing.
On the other hand, the ruling of arbitrators remuneration is one of the desired criteria, but this BIT leaves it open to the parties to decide, which is still not good enough.
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FairnessYes
Art. 28.3: a tribunal may not award punitive damages (moderate the remedial powers of tribunals).
Art. 27.3: allow parties to issue binding interpretations of the treaty.
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OpennessNo.
Art.21.1.d) UNCITRAL
Art. 26: documents (only awards and decisions) made publicly available if decided by the Disputing Party
Related with UNCITRAL rules: the fact that the improvement in transparency and openness would only happen if the claimant decides so, greatly reduces the relevance of the reform. In this sense, this clause alone shouldn't be considered as a relevant improvement.
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SubsidiarityYes
Art. 22.1.c) waiver: no arbitration until waiver of the claimant right to initiate or continue any proceedings before the
courts or administrative tribunals of either Party, or other dispute settlement procedures.
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TOTAL2
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6. Australia - Turkey BITCLAUSECONTENTSCORECOMMENTS
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PreambleThe Preamble doesn't specify the treaty objectives nor does it mention any public policy or general interest objectives.0
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FETArt.3.2 includes an unqualified FET standard guarantying a “fair and equitable treatment” to the foreign investor with the usual generic and imprecise drafting and without detailing the reach of the obligation or establishing any limits to its application.0
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ISDS0
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IndependenceNo
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FairnessNo
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OpennessNo
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SubsidiarityYes
Art. 13.4: As a precondition to electing arbitration, the investor must waive any right it may have to initiate or continue proceedings on the same matter before judicial or administrative bodies of either Party.
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TOTAL0
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7. Australia - Mexico BIT (MVP)CLAUSECONTENTSCORECOMMENTS
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PreambleThe Preamble doesn't specify the treaty objectives nor does it mention any public policy or general interest objectives.0
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ReviewFETArt.4.1 "Investments of Investors of either Contracting Party and the activities associated with investments shall at all times be accorded fair and equitable treatment and shall enjoy full protection and security in the territory of the other Contracting Party."0Art. 4 includes an unqualified FET standard guarantying a ‘fair and equitable treatment’ to the foreign investor with the usual generic and imprecise drafting, without detailing the reach of the obligation or establishing any limits to its application.

Art.4.5 "Nothing in this Article (FET clause) shall apply to taxation measures".
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ISDS0
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IndependenceNo
Art.14.1 "Unless the parties to the dispute agree otherwise, the arbitral tribunal shall comprise three members, each party to the dispute shall appoint one member, and the disputing parties shall agree upon a third member as the chair of the tribunal"
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FairnessNo
19.3 "The decision of an arbitral tribunal in an arbitration under Articles 13 or 15 of this Agreement shall be binding on the parties to the dispute with respect to the particular case. The parties shall abide by and comply with the terms of the award"
Art. 19.3 does not allow appeal mechanisms
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OpennessNo
13.4. UNCITRAL rules
Related with UNCITRAL rules: the fact that the improvement in transparency and openness would only happen if the claimant decides so, greatly reduces the relevance of the reform. In this sense, this clause alone shouldn't be considered as a relevant improvement.
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SubsidiarityYes
Art.13.3 "An Investor of a Contracting Party may not allege that the other Contracting Party has breached an obligation under this Agreement both in arbitration under this Article and in proceedings before a court or administrative tribunal of the latter Contracting Party. Where an enterprise of a Contracting Party that an Investor of the other Contracting Party owns or controls directly or indirectly alleges in proceedings before a court or administrative tribunal that the former Contracting Party has breached an obligation under this Agreement, the Investor may not allege the breach in an arbitration under this Article.

Yes
Art.13.5. "A disputing Investor may submit a claim to arbitration only if the disputing Investor consents to arbitration in accordance with the procedures set out in this Agreement and waives his or her right to initiate or continue before any administrative tribunal or court under the law of a Contracting Party, or any other dispute settlement procedure, any proceedings with respect to the measure of the disputing Contracting Party that is alleged to be a breach of this Agreement"
Art.13.3 impedes the investor to submit for resolution under ISDS arbitrations the same investment dispute that has been submitted under courts of Justice (or administrative tribunals)

Art.13.5. conditions the initiation of the ISDS proceedings to the investor's waiver if any right to start proceedings under national courts or tribunals.
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TOTAL0
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8. Australia - Sri Lanka BITCLAUSECONTENTSCORECOMMENTS
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PreambleThe Preamble doesn't specify the treaty objectives nor does it mention any public policy or general interest objectives.0
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FETArt.3.2: "Investments of investors of either Party shall at all times be accorded fair and equitable treatment"0Art. 3.2. includes an unqualified FET standard guarantying a ‘fair and equitable treatment’ to the foreign investor with the usual generic and imprecise drafting, without detailing the reach of the obligation or establishing any limits to its application.
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ISDS0
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Independence
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FairnessNo.
Art.13.2.b: this article recognizes the State's right to initiate the arbitration procedure but, as the rest of the Agreement, doesn't any provision with the responsabilities of foreign investors, this recognition cannot be considered an improvement.
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Openness
60
Subsidiarity
61
TOTAL0
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9 (and 10) Australia - Egypt BITCLAUSECONTENTSCORECOMMENTS
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PreambleNo mention in the Preamble to any non-comercial objective of the Agreement0
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FETArt.3.2: Each Party shall ensure fair and equitable treatment in its own territory to investments.0
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ISDS0Interesting: Art.14 covers the Settlement of disputes between investors of the Parties (which is not included in our analysis)
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IndependenceNo
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FairnessNo.
Art.13.2.b: this article recognizes the State's right to initiate the arbitration procedure but, as the rest of the Agreement, doesn't any provision with the responsabilities of foreign investors, this recognition cannot be considered an improvement.

No
Annex B.8: "An award shall be final and binding and shall be enforced in the territory of each Party in accordance with its law"
Annex B.8 does not allow appeal mechanisms
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Openness
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SubsidiarityNo
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TOTAL0
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11. Australia - Pakistan BITCLAUSECONTENTSCORECOMMENTS
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PreambleNo mention in the Preamble to any non-comercial objective of the Agreement0
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FETArt.3.2: Each Party shall ensure fair and equitable treatment in its own territory to investments.0
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ISDS0Interesting: Art.14 covers the Settlement of disputes between investors of the Parties (which is not included in our analysis)
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IndependenceNo
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FairnessNo.
Art.13.2.b: this article recognizes the State's right to initiate the arbitration procedure but, as the rest of the Agreement, doesn't any provision with the responsabilities of foreign investors, this recognition cannot be considered an improvement.
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OpennessNo
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SubsidiarityNo
81
TOTAL0
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12. Australia - Peru BITCLAUSECONTENTSCORECOMMENTS
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PreambleThe Preamble doesn't specify the treaty objectives nor does it mention any public policy or general interest objectives.0
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FETArt.3.2 "Each Party shall ensure fair and equitable treatment in its own territory to investment"0Art. 3.2. includes an unqualified FET standard guarantying a ‘fair and equitable treatment’ to the foreign investor with the usual generic and imprecise drafting, without detailing the reach of the obligation or establishing any limits to its application.
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ISDS0
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IndependenceNo
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FairnessNo.
Art.13.2.b: this article recognizes the State's right to initiate the arbitration procedure but, as the rest of the Agreement, doesn't any provision with the responsabilities of foreign investors, this recognition cannot be considered an improvement.

No
Annex 1.10: "An award shall be final and binding on the Parties"
Annex 1.10 does not allow appeal mechanisms
89
OpennessNo
90
SubsidiarityNo
91
TOTAL0
92
93
AUSTRIA5
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1 (and 4). Austria-Kazakhstan BITCLAUSECONTENTSCORECOMMENTSJP
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PreambleThe Preamble recognises that the treaty will contribute to the creation of employment and the improvement of living standards; that governments and civil actors must adhere to anti-corruption efforts; and that any conflicts between investment agreements and the protection of environment, HHRR and labour rights, must be solved without relaxing this protection.2
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FETArt.3.1 guarantees the investor a FET without detailing the reach of the obligation or establishing any limits to its application, although Art. 3.4.a) adds that "no provision of this Agreement shall be construed as to prevent a Party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security".0The mention to international peace and security is too broad to be considered as protecting national public policy objectives and, therefore, shouldn't be given 1 point.
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ISDS0
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Independence
99
Fairness
100
OpennessNo.
Art.13.2.c) iii: UNCITRAL
Related with UNCITRAL rules: the fact that the improvement in transparency and openness would only happen if the claimant decides so, greatly reduces the relevance of the reform. In this sense, this clause alone shouldn't be considered as a relevant improvement.
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