LFC Seminar - Corruption, FDI, investment treaties and arbitration in Thailand and Asia

LFC Seminar - Corruption, FDI, investment treaties and arbitration in Thailand and Asia
LFC Seminar - Corruption, FDI, investment treaties and arbitration in Thailand and Asia

Principal speaker

Professor Luke Nottage

The Law Futures Centre would like to invite to a seminar by Professor Luke Nottage, University of Sydney.

Abstract: This presentation raises an important and difficult legal and policy issue. A foreign firm makes foreign direct investment (FDI) into a host state with, relying on an investment treaty concluded by its home state guaranteeing substantive protections (like compensation for direct or indirect expropriation) and sometimes liberalised market access. The host state makes such commitments more credible adding its advance consent to investor-state dispute settlement (ISDS) arbitration claims to be commenced directly by the home state's investor. But if the host state violates its substantive commitments and the foreign investor commences arbitration seeking compensation, perhaps many years after the original investment, what if the host state responds that the FDI was tainted by bribery of officials or other serious illegality. Does the ISDS arbitration tribunal lose jurisdiction to examine this defence, in which case is this disproportionately unfair to the foreign investor, discouraging future investment and encouraging more future bribe-seeking by the host state? Does the tribunal instead retain jurisdiction but should it determine no liability, or reduced damages due say to contributory negligence, for the treaty violation? What burden and standard or proof should the tribunal apply to prove corruption allegations?

Drawing on the introductory chapter to my forthcoming co-edited book proposed for Springer, this presentation outlines some of these issues and actual cases, as well as the general problems of corruption and lack of transparency in government, particularly in Asia. Drawing another draft chapter, it also focuses on Thailand. That analysis also outlines its second inbound ISDS arbitration claim, commenced in 2017 under a 2004 bilateral FTA with Australia, where the investor Kingsgate claims expropriation of a gold mine by the Thai military government since 2015 but issues of corruption and illegality have also been raised. See further https://japaneselaw.sydney.edu.au/2022/03/corruption-and-illegality-in-asian-investment-arbitration/

Bio: Luke Nottage (PhD VUW, LLD Kyoto) is Professor of Comparative and Transnational Business Law at the University of Sydney Law School, founding director of the Australian Network for Japanese Law (ANJeL) and Japanese Law Pty Ltd, and Special Counsel with Williams Trade Law. He is also an Honorary Professor at the University of Wollongong, Senior Fellow at Melbourne Law School, and sessional lecture in international arbitration at Griffith University this year. Luke's 18 previous books, other research, teaching and practical engagement focus on cross-border arbitration, foreign investment and trade regulation, contract and consumer law, and corporate governance. He has made numerous media appearances and public Submissions to the Australian government and international bodies especially regarding arbitration and consumer law reform. Luke was admitted as a barrister and solicitor in New Zealand in 1995 and in NSW in 2001. He has consulted for law firms world-wide as well as ASEAN, the European Commission, OECD, UNCTAD, UNDP and the Governments of Japan and Saudi Arabia. Luke is also a Rules committee member of ACICA and on the Panel of Arbitrators for the AIAC (KLRCA), BIAC, CAAI, JCAA, KCAB, NZIAC, SCIA and TAI. See further https://www.sydney.edu.au/law/about/our-people/academic-staff/luke-nottage.html, http://www.williamstradelaw.com/special_counsel.html and https://scholars.uow.edu.au/display/luke_nottage

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RSVP on or before Wednesday 13 July 2022 09.57 am, by email lawfutures@griffith.edu.au , or by phone 0737355058

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