Research On Regulatory Rights Of Recent Investment Treaties In Australia

As an effective tool to balance the rights of host countries and investors,regulatory power has become the core of the innovation of international investment agreements.In the wave of global rebalancing,Australia has started the reform of setting regulatory rights rules in its recent investment treaties after reviewing its early investment treaties.China’s investment treaties in the three periods show different characteristics.The large number of first and second-generation investment treaties urgently need systematic reform on the vacancy of regulatory power.The contracting practice of Australia can give China inspiration.The main part of the paper is divided into four chapters:The first chapter clarifies the concept of the regulatory power of the host country and puts forward the research problems.Firstly,the regulation rights of the host country originate from the principle of national sovereignty and deduce two concepts in the narrow and broad sense in the international investment law;The overlapping content of indirect expropriation and regulation power in investment treaties was essentially regulated by the principle of public security power in the early stage;Based on the consideration of “public interest”,it is the legitimate premise for the host country to exercise the right of regulation.Secondly,the lack of clear “regulation right clause” in early Australia and the fuzziness of treaty language are not conducive to the interpretation of legitimate regulation right.Finally,the increase of claims for regulatory measures in the host country and the legitimacy and fairness of the current investor state dispute settlement(ISDS)mechanism may lead to the “regulatory chill” of the host country.The second chapter is the setting of the content of entity regulation right in Australia’s recent investment treaties.First of all,in the preface,it emphasizes the inherent regulatory rights of the state and sets up a special “regulation target clause”.Secondly,improving the terms of treatment,especially the introduction of restrictive language,can directly balance the rights of the host country and investors.Thirdly,clarifying indirect expropriation and setting indirect expropriation exceptions can solve the differences in the interpretation theory of indirect expropriation from the perspective of treaties.Finally,setting general exceptions and inconsistent measures clauses can clarify the areas in which the host country takes regulatory measures based on the goal of public welfare.The third chapter is the setting of the content of procedural regulation right in Australia’s recent investment treaties.The first is to restrict the application of international investment arbitration by setting up a compulsory consultation and adjustment mechanism,a “No-U-turn” clause and a “Case-by-Case Basis” into the ISDS mechanism.The second is to clearly exclude the scope of a series of claims: excluding public health measures,tobacco measures and claims decided by the Foreign Investment Review Committee.The third is to prevent investors from suing indiscriminately by prohibiting the “selection of treaties” and setting up a jurisdiction prior review mechanism.The fourth is to balance the power of interpretation between the state and the arbitral tribunal through the joint interpretation mechanism of the parties and the form of “public interest” notice.Fifth,introduce the “Friends of the court” system and procedural Transparency Clause in order to increase the transparency of arbitration.The fourth chapter is the enlightenment to China.Firstly,it summarizes the current situation and existing problems of the protection of regulatory rights in China’s investment treaties at different stages,draws lessons from the feasible experience of Australia,and puts forward some suggestions to improve the content of regulatory rights in China’s investment treaties.Secondly,it puts forward suggestions for Chinese enterprises to invest in Australia.By analyzing the international investment legal framework between China and Australia,it is found that the investment protection and claims that Chinese investors enjoy under the China Australia bilateral investment agreement(1988)and the China Australia Free Trade Agreement(2015)are quite different,reminding Chinese investors to seek more favorable treaty interpretation.