The International Investment regime is one of the fastest growing areas of international economic law which increasingly rely on large membership investment treaties such as the ASEAN comprehensive Investment Agreement. This book comprehensively examines the role of this specific agreement and situates it in the wider trend towards the regionalisation of laws and policy on foreign investment.
Broad standards and vague provisions in International Investment Agreements (hereinafter “IIAs”) give rise to costly litigation and create openings for tribunals to give unintended or incorrect interpretations to treaty provisions. In order to alleviate the risk above, a number of recent investment agreements have adopted the practice to incorporate the joint interpretation mechanism into the contexts, either through designing a specific organ or granting the contracting states the interpretive authority to issue binding joint interpretation on contentious provisions. The ASEAN Comprehensive Investment Agreements (hereinafter “ACIA”), as the Agreement governing investment relationships in the ASEAN, also provides the ten contracting states the authority to shape their mutual understandings on ambiguous provisions through issuing binding joint interpretations. Pursuant to the ACIA, due to the lack of a specific organ to be responsible for issuing joint interpretations, the article aims to explore the potential obstacles in terms of the implementation of the joint interpretation mechanism in the region, subsequently several pragmatic steps for facilitating the ACIA contracting states' usage of the mechanism will be proposed.
The ASEAN Comprehensive Investment Agreement (ACIA) has entered into force in March 2012, as a comprehensive investment treaty at regional level, part of the realisation of the ASEAN Economic Community (AEC). Among other international investment agreements (IIAs) concluded by ASEAN Members States, it speculatively allows addressing legal questions relating to foreign investment in a more systematic manner and enables placing national investment law in the context of regional governance. This paper give firstly the overview of ASEAN investment regime, it subsequently challenges the pluralist perception and argues that the ASEAN investment landscape is becoming increasingly multifaceted and complex. It finally observes that despite the highly fragmentation of the ASEAN investment treaties, the dynamic of intra-investment regime favours consistent and predictable rules and becomes, to a greater or lesser extent, basis for the ASEAN extra-investment approach.
As the authors of this volume observe in their Introduction, “The global regime for investment is dynamic and continually growing”. This is certainly a correct observation. But the regime is not only growing, it also receives considerable attention and is subject to close scrutiny, both by the public and within the profession and academia.
This chapter analyzes the provisions to improve regulatory discretion of member States included in regional investment agreement of the Asia-Pacific region. The analysis will be limited to the regional agreements only, excluding the Bilateral Investment Treaties which, in general, do not contain relevant derogatory provisions. In this context, a central role is played by the Association of South East Asian Nations (ASEAN) that, since 1987, promoted the conclusion of an Investment Guarantee Agreement among the 6 States at the time members of ASEAN. However, only after the conclusion of the ASEAN Charter in 2008, which provided a more solid institutional profile to ASEAN as well as the international legal personality, ASEAN concluded a number of investment agreements: the ASEAN Comprehensive Investment Agreement (among ASEAN members), and a number of agreements with third countries (China, Korea, Australia and New Zealand). All the agreements are focused exclusively on investment, with the exception of the agreement with Australia and New Zealand, which is part of a more comprehensive free trade agreement.
