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CHAPTER TWO: THE NOTION AND GENERAL CONCEPT OF INVESTOR-STATE DISPUTE SETTLEMENT (ISDS) AND TRANS-PACIFIC PARTNERSHIP (TPP)
- INVESTOR-STATE DISPUTE SETTLEMENT (ISDS)
- BASIS AND KEY TERM
From the past to the present, investment is one of the most significant portions in the aspect of global economy for this whole wide world. We can say that investment is a key to build and maintain trade and careers. Many firms as well as companies invest to form global value chains which is not only make new opportunities for trade but also add value, income, work, and business as well. In the meantime, trade agreements promote investment and give new opportunities for enterprises to invest around the world. The investor have to be ensure that they will be treated fairly for their investment abroad. Henceforth, this is one of the main reasons that the investment protection provisions shall be established. Its purpose is to ensure that foreign firms ‘investments are treated properly and in the same way just as the domestic ones by all means.
So many matters have happened that companies face at the time of their investment abroad which cannot be settled with any proper solutions by using domestic courts. All the matters as well as p2roblems can be rare yet dramatic. “For instance, they can include direct expropriation just as the seizure of assets by the host state by force and without appropriate compensation, discrimination, lack of due process in the domestic court system, or restrictions to international transfers of capital,” according to the report of the European Commission on Investment Protection and Investor-to-State Dispute Settlement (ISDS) in EU agreements.  Furthermore, in case that there is anything goes wrong or improper, the ISDS offers a forum for dealing with any disputes as well as such relevant matters. This way helps make the investors feel more confident in regards of investment abroad. Particularly, the existence of investment protection and the ISDS are not new though. In fact, it has been existed since the late 1960s. Even though these agreements have so far worked properly, the system still requires some development. In the meantime, the consequences have been controversial as well sometimes. In order to deal with such this matter, the Trans-Pacific Partnership (TPP) Agreement has also appeared to help deal and progress it to be better in order to secure the investors with less harm and burden.
The ISDS is an impartial, international arbitration procedure. Not quite different from any other forms of commercial, labor, or judicial arbitration, the ISDS figures out to offer an impartial law-based approach to settle with any matters involved with. Definitely, so many different forms of ISDS are currently a part of over 3,000 agreements globally, of which the United States is party to 50 in reality. Even if the ISDS is invoked as a catch all term, it still exists of such a wide variety of differences in scope and process dramatically. In addition, the ISDS in U.S. trade agreements is meaningfully better defined and restricted than in other countries’ agreements obviously. According to the Fact Sheet on Investor-State Dispute Settlement (ISDS) by the Office of the United States Trade Representative, “Governments put ISDS in place for at least three reasons as follows:
- To resolve investment conflicts without creating state-to-state conflict
- To protect citizens abroad
- To signal to potential investors that the rule of law will be respected”
Because of safeguards in U.S. agreements and high standards of the U.S. legal system, foreign investors infrequently follow arbitration against the United States and have never been successful after they have completed so. 
The report by AFL-CIO, America’s Unions demonstrates, “an investor-to-state dispute settlement (ISDS) is a special legal right that only those who invest in a foreign country can use to challenge a law, regulation, judicial or administrative ruling or any other government decision. Investors are those who buy property-whether it’s an acre of land, a factory or stocks and bonds.” In addition, the report also states “ISDS allows the foreign property owner to skip the domestic courts, administrative procedures, city hall hearings and the like (all the processes that home-grown property owners use) and sue the host-country government before a panel of private “arbitrators” (like judges, arbitrators have the power to make decisions in cases, but they are not democratically elected or appointed, and they are not subject to stringent conflict of interest rules.) Furthermore, the foreign property owners will not lose the chance to access to the domestic U.S. process. This means that they can “double dip” to receive what they would like.
To concretely understand more with regards of the ISDS, the OECD Working Papers on International Investment 2012/03 on Investor-State Dispute Settlement by David Gaukkrodger, and Kathryn Gordon describes, “ISDS is a fundamental element of States ‘efforts to reinforce the credibility of the commitments they make in their international investment agreements.”
In other words, ISDS provides the foreign investors the opportunity to file a complaint as well as to bring the claims to international arbitration panels by themselves directly. In fact, the panelists are private arbitrators authorized to resolve the case and theoretically award enormous amounts of taxpayer money in reimbursement.
In particular, the ISDS Mechanism is established by a certain agreement, and it can be modified in various methods. Not quite different, the ISDS panel cannot deal with all the national deviation from free-market principles. However, the content of the ISDS system is that matters as well as conflicts with regards of trade and investment agreements should be addressed by arbitration in a mutually agreed meeting aimed to reflect the matters as well as anxieties of the agreement’s parties.
Based on the Factsheet on Investor-State Dispute Settlement (ISDS) by the Arbitration Institute of the Stockholm Chamber of Commerce, “ISDS is governed by international rules which safeguard the functioning of the system, and ensure the rules of law.” The report continued, “The laws protect the impartiality and independence of the arbitrators, and safeguard due process.” Furthermore, the report also states, “A majority of ISDS cases are governed by the Convention on Settlement of International Investment Disputes (the ICSID Convention), has been signed by 159 states.”
More specifically, it shall have been noted that there is a massive majority of ISDS claims arise from executive branch decisions, as contrasting to legislative decisions definitely. According to the data of the report by the Arbitration Institute of the Stockholm Chamber of Commerce, “ In cases filed with ICSID of the World Bank, 47% of the cases have been associated with ministries or agencies, where such agencies have for example rejected or revoked licenses, and to terminated investment contracts. A minority (9%) have resulted from legislative acts.” Otherwise, the investigation of the cases under the North American Free Trade Agreement (NAFTA) demonstrates that most ISDS claims do not compete the executive’s capability to get the new methods as well as measures, yet rather worry specific guarantees considered owed to the investor dramatically. Also, it emphasizes that totally NAFTA claims directly challenging legislative and regulatory acts have not succeed.
So far, the structure of justice should be free, independent and available to all in a society on an equivalent base. However, the ISDS basically does not reach this standard. Henceforth, foreign investors are able to use “corporate courts” to challenge anything that upsets their bottom line. In this essence, this would like to emphasis from the needs that cigarettes be sold in plain packaging to increase in the minimum wage. With this regards, it absolutely pressures government’s capacity’s to provide feedbacks to the needs of public and set priorities that enhance the public welfare more progressively.
In other words, under the aspect of the Trans-Pacific Partnership (TPP) Agreement, the ISDS mechanism is being enclosed in the TPP Investment Chapter. With this regards, the ISDS is being acknowledged as “a dispute resolution mechanism that allows foreign investors to pursue remedies directly against a TPP Party in relation to breaches of TPP’s investments provisions,” according to the Fact Sheet of Trans-Pacific Partnership Investment and ISDS.
The fact is that there are some drawbacks and concerns throughout the ISDS mechanisms despites the benefits and convenience for investors in some reasons. It is somehow considered as risk and threat that the foreign property owners can use the ISDS or the system of “corporate courts” to challenge anything from plain packaging regulations for cigarettes to denials of licenses as well allowances for toxic waste dumps to upturns in the minimum wage by any means.  In regards to any law, regulation or any other government resolution that the foreign investor does not like, all it has to do is to consider of an argument for the reason of what has made that decision somehow breached its right to “fair and equitable treatment” or the reason that it may decrease its anticipated incomes. In this essence, there has been a case with this regards.  Furthermore, just threatening the case is sufficient for the proposed law as well as regulation to be withdrawn occasionally.
In this context, we can see some particular examples in reality. One obvious example is the Metalclad case under the North American Free Trade Agreement (NAFTA), which a U.S corporation prosecuted the Mexican federal government over a domestic government’s resolution to reject a permit to activate a toxic waste dump definitely. In fact, the residents as well as the domestic citizens sensed the dump would pollute their water supply and requested their government to reject the permit. In this case, Metalclad won more than $15 million finally, this will be explaining with further details in Chapter 3.
- THE EVOLUTION OF THE INVESTOR-STATE DISPUTE SETTLMENT MECHANISM: FROM DIPLOMATIC PROTECTION TO BITS AND MORE
Due to the insufficient and absence of the role of mechanisms to look after and secure such investment, foreign investors are panic and are not quite confident enough to use resources in other countries, specifically they mostly fear of being suffered as well as being injured by the legal and political burden and insecurities. Henceforth, some perspectives have come across with some methods and improvement in order to deal with such this matter and to provide further assistance and protection with less harm to all those foreign investors out there. In this essence, it would have been said that it is partly one of the root causes that many mechanisms have been progressed and developed a lot over the last few decades.
In fact, the protection of foreign property has engaged a site at the core of the public international law since its very beginning. More remarkably, the disputes between States causing from unproven violations of a national’s property rights can be marked out to the end of the 18th century. Historically, the European empires used to secure their investment and business interests in foreign states by either imperial submissions or the formation of capitulation systems prior the colonization absolutely. Without these, the foreign investment disputes had become to be the international disputes between the home State and the host State in regards to diplomatic protection definitely. 
In this sense, it was the customary means of gaining compensation for foreign investors injured by breaches of international law.  This kind of protection shall have referred to ‘consular action, negotiation, mediation, judicial and arbitral proceedings, reprisals, retorsion, severance of diplomatic relations, economic pressure and the final resort, the use of force,” according to the Utrecht Journal of International and European Law on Investor-State Dispute Settlement Mechanism: The Quest for a Workable Roadmap by Sachet Singh and Sooraj Sharma.”
The report also shows that the initial investor-State arbitration under a BIT occurred in 1987. Also, it proposes that proceeding to this most of the investment disputes that denoted to the international tribunals were either took in fulfillment to contractual agreements by the private parties or were State-to-State arbitrations, in this circumstance. There are particularly two correlated developments which were elaborated in the evolution of investor-State dispute resolution from diplomatic protection. Nowadays, the investment arbitration figured out something is new and significant which can be endorsed to the modifications in dynamics and mechanisms of foreign investment dispute settlement. Formerly, the investment disputes were resolved by State to State performance as well as resolution. However, it shall have been notified that in most cases, the representative from the host governments figured out that there was some difficulties to ensure that host States were only open to politically symbolic or economically significant disputes properly. Initially, the developing countries considered the international arbitration with suspicion. In this sense, this would like to show that even to the foreign investors, it looked as an impartial and trustworthy forum though.
Later on, the report additionally shows that from the post 1960s, the developed countries began to supporting the formation of the ICSID, which is known as the institution that established to deal with any disputes between host government and foreign investors within arbitration and conciliation. In the period of negotiations, the developing states agreed to a limited transfer of their rights as well as sovereignty by yielding to investor-State disputes to the ICSID for settlement.
According to Professor Chen Huiping, the developing countries however maintained ‘four safety valves’ in order to retain some control in the resolution of disputes. With this regards, it shall have been aware that the first safety valve was the exhaustion of local remedies. Based on this, all domestic administrative and judicial remedies existing to the contracting parties were to be exhausted prior sending the dispute to the jurisdiction of the ICSID definitely. In other words, the second safety valve was approval to arbitration on a case by case base, in the meantime. Furthermore, becoming a member of the ICSID Convention does not mean unconditional agreement as well as consent to ICSID arbitration at all. Based on the ICSID Convention, the contracting members shall have approved its consent in written form to yielding as well as submitting the case to the ICSID properly. Besides, the third safety valve was that the law of the host state was to be governing law.  In this context, the fact is that the developing countries would like to settle the disputes by using their domestic laws while the developed countries would like to make it be settled based on the aspect of international law obviously. In this essence, the ICSID stretch to a negotiation between both schools of thought by allowing the contracting parties to select the governing law by agreement as well as consent.
In case of any absence of any agreement, the law of the host government was to be applied, in the meantime any regulations of international law as may be applicable as well.  Lastly, the four safety valves were intended at defending as well as protecting the developing states from being conveniently accused or sued by the foreign investors anyhow. It is one of the main reasons that only twenty four cases were sent as well as yield to to the ICSID for the period of the first twenty five years of its presence. In contrary, the developing states looked as if it has extremely altered their position by the end of the 1980s by differing from the Calvo Doctrine, giving up the ‘four safety valves’, and receiving the greatly protective dispute resolution provisions in their BITs for real.
Otherwise, there are three main points contributed to this vivid change. The first one is that the awareness enhanced that being a member to the ICSID Convention was a process of increasing mutual secure and assurance, which in turn increased the influx of capital into the developing states. The second one is that US began to sign the protection agreements (ÍPAs’) as an alternative of guarantee agreements (‘IGAs’) as per its recently established Model BIT and states which desired to sign BITs with the US had no opportunity but to get the high standards in this period. The last one is that developing states began to consider of signing BITs with developed states as a way of enhancing their local legal atmosphere for foreign investment as well as cooperation. 
On the other hand, one remarkable point is that the quantity of cases against the developing states by foreign investors and the sum of reimbursement paid by the host state has increased more and more. As a result, the developing counties have begun implementing a more obedient method with respect to investor-State dispute settlement mechanism properly. On the other hand, it does not change the issue of the scope or outline as well as the essence of such responsibilities into an issue of international law at all.
- NATIONAL TREATEMENT (NT)
Under the aspect of the Investment Law, there usually be various Standards of Protection as known as the National Treatment (NT), Most-Favored Nations (MFN), Umbrella Clause, Expropriation, Fair and Equitable Treatment, and so on in term of the Investor-State Dispute Settlement (ISDS).
In this context, this part will be discussing about such significant description as well as the process of the National Treatment (NT) initially. In fact, the National Treatment (NT) standard is one of the remarkable provisions of International Trade and Investment Agreement (IIAs). The National Treatment (NT) standard is the standard that protects the investors by securing that the host government is going to treat their foreign investors fairly. This means that the host states shall have provided foreign investors in the way just as favourable as what and how they have treated and made to their nationals ones.
Besides, the NT shall have been acknowledged as one of the most sensitive standards due to it touches upon either the economic or political portion as well as problems. Also, states consisted of such limitations of applicability of the NT in many methods. The NT aims to ensure that the playing field between foreign investors and national ones are levelled. This means that it would like to make sure that both the foreign and national investors are treated in balance in term of any challenges. Frequently, this standard is limited by enclosing a carve-out in the standard that take out such definite areas from the applicability of the provision. For instance, it refers to such concerns as well as problems regarding public health and national security, or it doesn’t include any particular areas as well as taxation, or any definite industries and sectors, in the meantime.
On the one hand, it shall have been considered that there are three notified levels of study operated at the time of determining whether the NT standard has been breached or not.  Initially, the first level inspects whether the condition or circumstances between the foreign investor and the domestic investor is “like” or not. The likeness needed under the NT standards is typically interpreted broadly by ITs. In other words, the second level of the examination is whether the foreign investor have been treated in a different way than the national investor or not, and in that case whether such treatment is acknowledged to be at least as favourable as the treatment afforded to the national investor properly.
Lastly, the third level of the examination is whether the distinguishing measures can be acceptable on a balanced ground or not. Truly which grounds that permits diversity is not totally accurate, yet measures supporting national investors perhaps sometimes be suitable in case that it can be acceptable by public policy purposes. 
- MOST-FAVOURED-NATION (MFN)
Obviously, it should be noticed that where the explanatory room for manoeuvre is exhausted, the detection of imaginable extent of MFN clauses, usually enclosed in BITs and other IIAs, which has offered investment tribunals with some other instruments to overcome inadequate dispute settlement clauses in such proper circumstance. In contrary, there is another significant point to be acknowledged that after the ICSID tribunal in Maffezini v Spain which is initially held in 2000 that an MFN Clause shall be trusted in order to evade such waiting time of 18 months in the fundamental BIT between Argentina and Spain, tribunals have been divided on the accurate scope of MFN clauses further than the significant of fundamental protection definitely.
In some particular time, the rather unreliable decisions of investment tribunals could be restructured by two broad dissimilarities. In this context, it would be that the MFN clauses performed to be suitable in assistance for claimants to overcome simply procedural difficulties, as well as during the time of waiting, whereas they were commonly not looked upon as proper tools to import jurisdiction anywhere the fundamental treaty does not offer for investor-state arbitration by any mean. Otherwise, after the awards in Wintershall v Argentinaand in RosInvest v Russia, in contrary, this agreement also broke into parts and tribunals currently follow the whole variety of possible consequences, from rejecting any outcome of MFN clauses further than substantive protection to allowing the significant of all (substantive, procedural and jurisdictional) benefits as well as compensations of any other BITs particularly.
- UMBRELLA CLAUSES
After having acknowledged with regards of the MFN Clause in the previous part, now this part will also demonstrate the other attempts of dispute settlement clauses which is the umbrella clauses. In fact, the dispute settlement clauses restricted to the settlement of treaty claims perform to eliminate the opportunity to have any other disputes, specifically so-called contract or agreement as well as disputes being settled by investment tribunals. Yet, in regards of the implementation, this restriction shall be overcome over reliance on umbrella clauses in obvious.
Meanwhile, it based on the explanation as well as the interpretation provided to umbrella cases, an issue which is fraught with disagreement, specifically since an ICSID tribunal in the case that SGS v Pakistan denied the opinion that ‘breaches of a contract… decided with a State (Extensively acknowledged to be a problem of municipal rather than international law) are directly ‘upgraded’ to the level of breaches of international law eventually. Nevertheless, in the case of SGS v Phillippines, there is one other tribunal stick to the traditional perspective that an umbrella clause ‘creates it a breach of the BIT for the host government to be unsuccessful to reach binding commitments. This also includes the contractual commitments, which it has supposed with regard to definite investments as well.
From that, there are some tribunals such as El Paso, Pan American, or Salini v Jordan, observe to the preventive method engaged by the SGS v Paskistan tribunal, in certain.  Yet, the majority seems to side with the SGS v Philippines method. Moreover, the point is that most obvious in such circumstance was the last award in Noble Ventures v Romania, where and ICSID tribunal decided that a clause given that ‘[e]ach Party shall perceive any responsibility it may have come into under the aspect of investments’ was ‘[a]n umbrella clause [which] is typically realized as converting municipal law obligations into obligations straightly be recognized in international law context. Additionally, the point is that such interpretation of the consequence of an umbrella clause allows investors to increase contract damages as matters subject to treaty arbitration in obvious.
Generally, we shall have seen in some reasons that some particular investment treaties usually consisted of a provision just as this umbrella clauses. Concretely, the umbrella clauses refers to the one process that needs the host government to fulfill with particular responsibilities as well as determination owed to (or go into with) investors as well as investments by any means. In other words, any particular interpretation of the umbrella clause remains indescribable due to the fact that the definite wording of these clauses frequently differs from agreement to agreement, though the clauses with quite the same wording that have been provided diverse interpretations by arbitral tribunals anyway.
Based on some tribunals, investors would be able to practice umbrella clauses in order to impose any responsibility owing by the government, which can be able to include the responsibility owed under another areas of international law, general domestic laws, or under the aspect of any particular investor-state contracts or agreement as well. Additionally, some other tribunals have interpreted the provision more specifically, concluding that umbrella clauses only permit an investor to impose responsibilities owed in particular to it under the context of an investor-state contract as well as agreement.
In general, there are two remarkable categories of expropriation. The first one is known as ‘direct’ expropriation and the second one is ‘indirect’ expropriation. With this regards, direct expropriation is the one that engages ‘the physical taking or nationalization of an enterprise, and typically engages a transfer of ownership to the state. In the meantime, the indirect expropriation is usually acknowledged as a performance or measure occupied by the state which has the consequence of developing the investor of the advantage of its investment, whereas not causing in the transfer of ownership though.With this regards, the investment treaties normally acknowledged that states may legally expropriate assets as well as property, yet need that any expropriation shall have been punctually, sufficiently, and efficiently remunerated.
Typically, that should be convenient to notify whether it has been a direct expropriation or not anyhow. As notice in such cases, it has always been more inconvenient queries that frequently involves to the proper measure of compensation. Conversely, indirect expropriation can be much harder to recognize, set the fine line that divides an indirect expropriation from legitimate implementation of as state’s bona fide as well as good faith in governing power that may be such consequence in effects parallel to those consequential from expropriation in certain. For instance, it refers to such removal of all, or substantially all, of the cost of an investment in concrete.
Furthermore, the Investment tribunals have implemented a diversity of dissimilar tests to choose whether a measure or sequence of measures amounts to an expropriation, creating it hard for states to regulate how future movements will be judged by a tribunal for some reasons. Remarkably, though a government’s domestic legal system rules and necessitates compensation for indirect expropriations, and a domestic court has been willing that a competitive measure does not establish an indirect expropriation, an ISDS tribunal perhaps continually figure out that the same measure created an indirect expropriation under the aspect of international investment law in reality.
Under the aspect of Investment Law, the rules shall have been well acknowledged that the asset as well as the property of foreign investors cannot be occupied, whether for public intentions or not, unless there is any sufficient evident or definite regulations for compensation. In this regards, disputes on direct expropriation-remarkably related to nationalization that marked the 70s and 80s—have been substituted by disputes related to foreign investment regulation and “indirect expropriation.” Just because it is extensively encouraged by the initial cases which are carried by under NAFTA, it has been aggregated concerns that perspectives such as indirect expropriation perhaps be applicable to regulatory measures intended at protecting the environment, health, and other welfare interests of society in accurate. There are such queries in the meantime have been appeared as well as inquired that to what level a state may affect the worth of property by regulation, either common in nature or by such any particular performance in the context of general regulations, regarding a legitimate public intention without resulting a “taking” and having to compensate regarding such this actions as well as performance.
By that, there is a chief commentator proposes that the concerns of definition of expropriation in this context shall turn out to be the main issue under the aspect of intentional investment law eventually. 
- FAIR AND EQUITABLE TREATMENT
Fundamentally, most modern investment treaties cover a provision that needs the host governments to agree “fair and equitable treatment” (FET) to investments so far. Besides, the tribunals have resisted interpreting and applying over this unclear standard. The reason is that most treaties normally provide uncertain guidance regarding its meaning eventually. Otherwise, some tribunals have accepted a comparatively narrow method, ending that governments are going to be only responsible in case that their conduct is improper and awful. Despite this, others have interpreted the provision even much more largely, creating a high standard that needs host governments not to perform in a way that impacts the “basic” or “legitimate expectations” which were taken into consideration by the foreign investor at the time of creating the investment by any means.
What’s more, investors have trusted comprehensively on this extensive interpretation of FET in challenging the ways of host governments. In brief, this provision has come to be a “catch-all” clause, letting investors to be successful at anywhere their other claims are not successful. For instance, this means refers to such claims that in relation to expropriation totally.
- QUALIFYING PROCEDURAL ACCESS TO ISDS
- EXHAUSTION OF LOCAL REMEDIES
As mentioned in the first beginning of this paper that we can see many critics despite the precious presence of the TPP and its mechanism on ISDS. What the critics mentioned about is that the TPP’s ISDS panels substitute the United States legal system as well as jurisdiction. Dramatically, this shall have been aware that is possible to demand the investors to exhaust domestic remedies initially. However, the United States has not achieved its try and endeavor in several different way of Public International Law opportunities by any means.
In the midst of other inconvenience and obstacles, it shall have been acknowledged that the signatories will not accept with no mutual assent which is only deal by the United States courts, who is the first one is on the track or battles and be always one step ahead. Further than this, the United States will not accept various foreign courts ‘exhaustion rights as well as their privileges due to the fact that the United States investors who are involved in those nations have been subjected to oppose injustice, endless delays, corruptions, or classic renunciations of justice because of inadequately progress the procedural and substantive law . In particular, the only one resolution to deal with such this dilemma is to give all the parties the chances or opportunities to access to ISDS panels properly.
- TIMELINE AND EXHAUSTION OF LOCAL REMEDIES
Under the aspect of International Law, the Exhaustion of Local Remedies (ELR) rules or regulations needs that a foreign national supposedly injured by a state shall have initially figured out to compensate the suspected injury prior to the administrative as well as the judicial system of that government, as long as the final resolution has been purified, prior looking for the diplomatic protection or opening international proceedings straightly against the host government.
Furthermore, the purpose of Exhaustion of Local Remedies is to serve as well as to offer the government where the destruction happened “an opportunity to redress it by its own means, within the framework of its own domestic system,” “before its international responsibility can be called into question.”
Based on the report of the International Institute for Sustainable Development on Exhaustion of Local Remedies in International Investment Law, the below rules will explain more specifically with regards to “the ELR Rules that shall not be misunderstood with somewhat similar provisions in investment agreements in investment agreements:
- Cooling-off period: Many treaties require disputing parties to resort to amicable means of dispute settlement for a specified period before initiating international arbitration. These amicable means may include negotiation, conciliation and mediation, but do not include local administrative or judicial remedies.
- Exclusive forum choice clauses: Some investment treaties and contracts indicate domestic courts as the exclusive forum for settling disputes. In this context, domestic courts are an exclusive choice; unlike the ELR rule, exclusive forum choice clauses do not create pre-conditions to initiate international arbitration.
- Fork-in-the-road clauses: These clauses indicate alternative forums to which the investor, at her choice, may submit an investment dispute; they also determine that the choice made is final. Like exclusive forum choice clauses, fork-in-the-road clauses do not establish that domestic remedies should be the first step before escalating the dispute to the international level; if the investor chooses to resort to domestic remedies, that choice forecloses the option of resorting to international arbitration.”
- TRANS-PACIFIF PARTNERSHIP (TPP)
After having been acknowledged with the key term of the Investor-State Dispute Settlement (ISDS) in the previous part, now this part will explain with regards to the key term of what the Trans-Pacific Partnership (TPP) Agreement is and how its provision is about.
- KEY TERM
Evidently, the report on “The Trans-Pacific Partnership (TPP): In Brief” by Congressional Research Service explained that the Trans-Pacific Partnership (TPP) is a proposed free trade agreement (FTA) among 12 Asia-Pacific countries, which the Obama Administration casts as comprehensive and high standard, with economic and strategic significance for the United States. Also, the report continued, “The 12 countries (including the United States) announced the conclusion of the TPP negotiations and released the text of the agreement in late 2015, but Congress would need to pass implementing legislation for the agreement to enter into force for the United States.
According to the article on the definition of Trans-Pacific Partnership (TPP) by the Investopedia, “The Trans-Pacific Partnership (TPP) is a proposed free trade agreement linking the United States and 11 other Pacific Rim economies.” In the meantime, the article also demonstrated that during the year of 2015, the Congress provided Barack Obama such a very quick-track power to negotiate the agreement and place it to an up-or-down vote with no any modifications.  In this essence, all 12 nations did sign the agreement in February 2016 as per notice. 
- BRIEF DESCRIPTION
Remarkably, on October 4, 2015, the Minister of the 12 Trans-Pacific Partnership (TPP) countries as well as the TPP members as known as: Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, United States, and Vietnam lawfully did declare the assumption of their consultations. In the meantime, the outcome is a high-standard, determined, comprehensive, and well-adjusted agreement which will boost the economic; assist and support the establishment and preservation of jobs as well as career and business; enhance the invention, productivity and challenges; increase as well as improve the living standards; decrease poverty in each countries; and develop transparency; good governance; and improve labor standards, and provide environmental protection by any means.
In fact, the members of the TPP envisage assumption trade and investment in the Asia Pacific, as a major step toward their final aim of establishing trade and regional integration across the region more efficiency in this new era. In other words, the Trans-Pacific Partnership (TPP), which is considered as the biggest regional trade agreement chronologically, would have established new terms for trade and business investment in the midst of the United Sates and 11 other Pacific Rim nations — a extensive group with an annual gross domestic product of approximately $28 trillion that symbolizes righty 40 percent of global G.D.P and one-third of the world trade in term of economy and investment through thick and thin.
Despite the 29 Chapters of TPP which deals with various things as well as from financial services to telecommunications to sanitary standards for food, this dissertation will mainly focus more specifically with regards to its investment Chapter (Chapter 9) which concretely demonstrates the refection of TPP and its ISDS process and issues facing more than any other Chapter beyond the scenario. By forming the agreement as well as the provisions, specifically the investment rules, all the TPP members established the rules providing non-discriminatory investment strategies and protections that ensure the fundamental rule of law protections, whereas protecting the capacity of Parties’ government to reach legitimate public policy purposes by all means.
In its provisions, the TPP provides such fundamental investment protections which figured out in other investment-related accords, in this circumstance. This means that it contains some specific and essential portions of standard of protection. Based on the report by the office of the United States Trade Representative: Executive Office of the President, these fundamental as well as “basic investments protections including:
- National Treatment (NT);
- Most-Favored-Nations (MFN);
- and ‘Minimum Standard of Treatment’ for investments in accordance with customary international law principles;
- prohibition of expropriation which is not for public intention, without due process, or without compensation;
- prohibition on “performance requirements” as well as domestic content or technology investment, subject to exceptions in the TPP to secure that states maintain the flexibility to control instable capital flows, containing over the non-discriminatory short-term safeguard measures as well as capital controls, limiting investment-related transfers in the circumstance of a stability of payments crisis or the risk thereof, and any particular other economic crises or to protect the trustworthiness and constancy of the economic system; and freedom to allocate senior administration positions of any nationality definitely.”
In addition, this Chapter also offers for impartial and transparent international arbitration of investment disputes, through strong safeguards to protect offensive and unimportant claims and secure the right of states to regulate in the public interest, containing health, safety, and environmental protection as well. Furthermore, the procedural safeguards also contain such criteria as known as the transparent arbitral proceedings, amicus curiae submissions, non-disputing Party submissions; accelerated evaluation of such insignificant or ridiculous claims and capable award of attorney’s costs; examine procedure for a temporary award; binding joint interpretations by TPP Parties; time limits on carrying a claim; and rules as well as such regulations to defend a claimant continuing not quite different claim in parallel proceedings by all means.
- TPP AND ITS TERMS
Due to the fact that it is seldom to see any non-investment strategy in such preamble of former international investment accords, specifically just as the Hong Kong-Australia BIT initially, the tribunals dealing disputes under those accords have explained as well as interpreted the term or standards therein (and any exceptions). For instance, it takes into account of the narrow mentioned intention and purpose of the treaty, particularly in term of investment protection and promotion in proper. However, some other modern accords nowadays include language in its preamble that demonstrates such other investment strategies purposes, which refers to the promotion of sustainable development, as an example. Not quite different, this is how the TPP Preamble also does. In this context, it definitely acknowledges a State’s “inherent right to regulate.” Additionally, it also demonstratesthat the TPP member states decide to
maintain the flexibility of the Parties as well as members in order to set legislative and rules primacies, safeguard public welfare, and also to maintain legitimate public welfare aims, such as public health, safety, the environment, the conservation of living or non-living exhaustible natural assets or resources, the reliability and constancy of the financial scheme and public morals as well as ethics for the time being.”
Truly, the text of this preamble would have gone some way in order to classify such areas of rules even if that rule or regulation harmfully impacts an investment of an entity or institution from such other TPP members. Contrary to this, it doesn’t mean that the preamble quantities are likely to carte blanche for ruling in the specified areas, eventually. Otherwise, the presumably regulation shall have been reliable with the TPP’s terms as well. For instance, this shall have not been such discriminatory, especially discriminate in favor of national investments. Plus, it also shall have been construed broadly in order to encounter a legitimate procedure.
- INVESTOR AND INVESTMENT
Significantly, the definitions of investor and investment are essential to the scope of application of the rights and obligation of an international investment accord. Based on the report by Adgrew Stephenson (Partner) & Lee Carroll (Special Counsel) on The Investment Treaty Arbitration Review, The Trans-Pacific Partnership, “The definition of investment expressly excludes an order or judgment in a judicial or administrative action.” Additionally, the TPP also needs that the asset as well as the resource shall be consisted of the “characteristics of an investment” as well as the strong commitment of capital, the expectancy of gain or profit, or the supposition of risk or threat.” For this condition, it refers to the terms of the ‘denial of benefit’ clause that allows the exclusion of particular investors from protection, in certain.
Quite different from other State Party, under the aspect of the TPP provisions, there are specifically two categories of investors which are known as a national or an enterprise of a party, in this scenario.
According to the report as well as the explanation by Andrew Stephenson (Partner) and Lee Carroll (Special Counsel) regarding The Investment Treaty Arbitration Review, The Trans-Pacific Partnership, “A ‘national’ is a natural person who has the nationality of a Party according to Annex 1-A or a permanent resident of a Party. Annex 1-A provides for Party-specific definitions of ‘nationality’. As with most investment treaties, the TPP bases nationality exclusively on the laws of the State of the claimed national. In Australia, a natural person who is an Australian citizen, as defined in the Australian Citizenship Act 2007, has Australian nationality.
Also, the report continues, “An ‘enterprise of a Party’ is an enterprise constituted or organized under the law of a Party or a branch located in the territory of a Party which also carries out business activities there. In respect of the inclusion of a “branch”, an enterprise of a Party need not be an enterprise constituted or organized under the law of a Party. It may be constituted and organized under the law of any State (including a non-State Party). Meanwhile, in this case, what is even more critical is that the unit as well as institution or individual implements” business activities” in a State which is a Party to the TPP ,in particular.
On the other hand, this above definition requires to be seen with Article 9.14, a denial of benefits clause, which allows the exclusion of definite investors for the time being. On the other hand, it is one of the most remarkable scenarios to be aware that the TPP Investment Chapter (Chapter 9) also encloses with an Investor-State Dispute Settlement (ISDS) Mechanism, which has already explained in the very beginning Chapter regarding the basis and key term of ISDS that it is mechanism that shall be considered as a dispute resolution system which permits foreign investors so-called as the aliens to chase remedies directly against as TPP member in term of any breaches of TPP’s investment provisions in such this circumstance.
Based on the factsheet by the New Zealand government on Trans- Pacific Partnership: Investment and ISDS, “Investment provisions that the ISDS mechanism shall be applicable contain:
- The Investment chapter subject to certain exceptions,
- Limited aspects of the financial services chapter subject to certain exceptions, 
- Investment agreements which are defined in TPP as a narrow set of agreements entered into by New Zealand’s government departments and ministries. Agreements relating to matters such as land, water or the delivery of correctional, healthcare or other social services are not investment agreements and are not subject to ISDS under the investment agreements provision;
- Investment authorizations, though New Zealand has secured a country-specific exception which mean Government decisions under the Overseas Investment Act to grant or decline consent for foreign investment are not subject to ISDS. This protects the Government’s ability to control the approval of foreign investment in significant business assets, sensitive land and fishing quota.”
Evidently, the ISDS provisions of TPP do not be applicable to any other areas of the agreement or accord.
- THE STANDARD SUITE OF INVESTOR PROTECTION
Remarkably, on 5 November 2015, the TPP article or so-called as the text or provision was released in public. As a matter of fact, it contains about 30 Chapters, various annexes and a quantity of side accords and reservations accurately. More specifically, the investment Chapter which is in Chapter 9 of the TPP consisted of the substantive protections which provides that each country member to the TPP agrees to provide to investments conducted by foreign investors of another country member to the TPP Agreement. Furthermore, this Chapter also contains of the Investor-State Dispute Settlement (ISDS) provisions, consisting of host government’s final consent to refer investment disputes to international arbitration properly. Notably, here the concentration is on obviously remarkable aspects of that Chapter of the TPP, which is of significance for both sovereign governments and foreign investors so-called as the aliens.
Under the aspect of this investment Chapter (Chapter 9) contains the provisions in related to the ISDS, which is regarding to the investment arbitration system that is significantly be a potential instrument for investors who suffers much from the host governments. Concretely, the final version of the TPP draws on a number of the up-to-date legal progresses and procedure tendencies in investment treaty arbitration, in the meantime.
At first, it restricts a quantity of its substantive investment protection standards responding to current jurisprudence. Secondly, it cuts out a quantity of rights for host governments and permits them to reject TPP assistance as well as interests to certain investors. Lastly, it figures out to settle obvious concerns voiced lately in relation to investment treaties and ISDS obviously.
More accurately, it reflects to Section A of Chapter 9 that consists of various of the normal investment protection standards such as the Fair and Equitable Treatment (FET), no expropriation without compensation, and Most-Favoured- Nation (MFN) treatment which shall be considered as the major suite of rights of protected under the TPP and this will be elaborated in the below parts definitely as follows:
- NATIONAL TREATMENT (NT)
One of the most remarkable standards of investment in TPP would have been considering as the National Treatment (NT). In this context, the TPP countries members agree to give foreign investors no less favorable treatment than that given to their own domestic investors, in like circumstances. In this essence, it means that those who are countries members to the TPP decide to give foreign investors (particularly refer to the investors from other TPP countries) the same treatment as what they have offered to their own domestic ones. To define what “like circumstances” is, a tribunal probably consider whether the related treatment differentiates between investors or investments on the fundamental of legitimate public purposes in accurate.
- MOST FAVOURED NATION (MFN)
Another main part of the investment protection standard of TPP is acknowledged as the “most favored nation (“MFN”) treatment” standard, which needs that a host government treats the investor or investment of some other member state as favorably as any other investor or investment of another government, whether or not that other state or government is a member of the TPP. This means just that everyone whether domestic or aliens shall be treated fairly and as the same position even if some of them are not party to the provision.
Usually, the MFN Treatment was given only to applicable rules. It’s fact that the MFN Treatment is purposed to ensure a level playing field for investors and their investments by any means.
With this regards, the TPP parties decide to grant the same trade benefits to both foreign and domestic investors, in like circumstances (assessed against legitimate public objectives, in the same way as discussed above). Also, an investment agreement as well as an accord includes a MFN clause that normally permits an investors to depend on any better substantive protections that provided by a host government to the nationals of any other State, enclosing with those contained in the host government’s investment treaties or agreement with other States accurately.
In contrast, the TPP emphasize clearly that the MFN clause does not include international dispute resolution procedures or mechanisms eventually. This means that claimants cannot be relied on the MFN clause to extend their access to dispute resolution mechanisms which is available under any other bilateral or multilateral free trade agreements in appropriately, based on the report by Laurence Shore, Christian Leathley, and Donald Robertson regarding the TPP and Investment Protection. In accordance with Article 9.5(3) of the TPP, it does provided very accurate and clearly that the MFN Standard of TPP “does not encompass international dispute resolution procedures or mechanism.” By this, it seems to reduce such burden or any harm as well as argument which many investors have resorted to in the past (albeit with limited success) which an accord’s MFN provision permits an investor to rely on more favourable dispute resolution provisions which figured out in a host government’s other investment treaties or accords in proper.
- EXPROPRIATION AND COMPENSATION
Just because it is obvious that most investment treaties, and it is in line with the US Model BIT, the context of TPP intends to forbid any kind of expropriation, which meant neither direct nor indirect unless where the expropriation aims for a public purpose; non-discriminatory in nature; accompanied by imbursement of prompt, sufficient and in effect compensation; and in the context due process of legality, and it will not be reflected further than this. In this essence, the report by Laurence Shore, Christian Leathley, and Donald Robertson regarding the TPP and Investment Protection also demonstrates that TPP countries members agree not to expropriate, in the meantime. What’s more, the TPP also provides a precious and specific definition of what is “direct” and “indirect” expropriation properly.
The report continually stated, “What constitutes indirect expropriation depends on all of the circumstances of the alleged expropriation, including the economic impact of the government action; the extent to which the government action interferes with distinct, reasonable, investor-backed expectations; and the character of the government action.” Henceforth, this is completely emphasized clearly that non-discriminatory regulatory performance designed to enhance public welfare objectives do not involve indirect expropriations as per norm. It is important to be noticed that TPP provides clearly with regards to the definition of indirect expropria5tion at Annex 9-B, which fundamentally be similar to the one that figure out in a number of US investment treaties or provisions as well. Definitely, the expropriation provisions in Article 9.8 and Annex 9-B shall have been applicable only to intervention with “a tangible or intangible property right or property interest in an investment”.
Corresponding to the term of the indirect expropriation, the report by Allen & Overy on the “New investment protections offered in ground-breaking Trans-Pacific Partnership” illustrates that the TPP investment Chapter (Chapter 9), Annex 9-B (3) (a) requires a “case-by-case, fact-based inquiry.” In this regards, it would take into account various factors such as:
- the “economic impact” of the host State action, although the adverse effect of such action on the “economic value of an investment” does not establish an indirect expropriation in and of itself;
- the extent to which host State action interferes with “distinct, reasonable investment-backed expectations”; and
- the “character” of the host State action.
Furthermore, Annex 9-B (3) (b), states that a host government’s “[n]on-discriminatory regulatory actions […] designed and applied to protect legitimate public welfare objectives […] do not constitute indirect expropriations, except in rare circumstances, the report added.”
Definitely note in responding to expropriation, there are such conditions with regards to sovereign liability as well as responsibilities in the TPP as set out in Annex 9-G expressly acknowledges “that the purchase of debt issued by a Party entails commercial risk,” which may indicate that mere non-payment will not essential support a treaty claim, and not containing such definite disputes, containing expropriation claims, in relation to a reformation of debt as well as the liability that is subject to a “negotiate restricting,” in this circumstance. It seems as establishes a response to a number of current and contentious claims getting out of bed out of sovereign liability default and/or debt reformatting against Argentina, Greece, and Cyprus properly.
- MINIMUM STANDARD OF TREATMENT: FAIR AND EQUITABLE TREATMENT
In addition to the National Treatment (NT), Most-Favored-Nation (MFN), Expropriation and compensation, the Minimum Standard of Treatment is another remarkable standard of investment of the TPP and it shall have considered as the most significant portion as well in this regards due to its particular major concerns regarding such provisions under Article 9.6 which some critics has raised up with the point that it doesn’t protect investor completely and states remain have the rights to regulate the liability of investors.
Nevertheless, the TPP’s countries members decide to offer protected investments fair and equitable treatment and full protection and security, in accordance with customary international law, and also identify that the “fair and equitable treatment” and “full protection and security standards are not in addition to “customary international law minimum standard of treatment of aliens,” however, are subdivisions of that minimum standard, in this sense. It can be said that the TPP follows the lessons as well as the experiences from NAFTA and various other investment accords or provisions that would like a host government accord foreign investments a “minimum standard of treatment,” which NAFTA provides a definition of it as the “treatment in accordance with international legality, as well as containing fair and equitable treatment and complete protection and security properly.” Moreover, it is consisted of such controversies concerning what constitutes “international law” that whether it means only to treaties and conventions or also to unwritten customary international law and such implementations.
Besides, it has also been stated that the customary international law minimum standard of treatment of aliens means as well as emphasis referring to all customary international law principles that protect the investments of aliens, according to the report by Ko-Yung Tung on Investor-State Dispute Settlement under the Trans-Pacific Partnership. Additionally, TPP deliberately also states that the mere fact that a TPP member takes, or unsuccessfully takes, a performance as well as action that is inconsistent with an investor’s expectations does not essentially breach the minimum standard of treatment obligation or responsibility at all. Moreover, the TPP members’ decision to grant or adjust subsidies as well as the grants is deliberately protected properly.
- DENIALS OF BENEFITS
Additionally to what the previous parts have elaborated, this part will also illustrate with regards of the denials of benefits under the aspect as well as criteria of the TPP. In the meantime, the TPP provision illustrates in its context:
“A TPP participant may deny the benefits of the TPP’s investment chapter to an investor’s enterprise, if that enterprise
- is owned or controlled by a person from a non-TPP country or from the TPP country alleged to be denying the benefits; and
- (ii) does not have substantial business activities in the territory of any other TPP participant (i.e. a TPP country other than the TPP country alleged to be denying the benefits)”
 European Commission, Investment Protection and Investor-to-State Dispute Settlement (ISDS) in EU agreements, Trade Doc., at 1 (2014).
 OFFICE of the UNITED STATES TREADE REPRESENTATIVE, EXECUTIVE OFFICE OF THE PRESIDENT, FACT SHEET: Investor-State Dispute Settlement (ISDS): What is ISDS? (2015), available at https://ustr.gov/about-us/policy-offices/press-office/fact-sheets/2015/march/investor-state-dispute-settlement-isds.
 AFL-CIO, America’s Unions, What is ISDS?, available at http://www.aflcio.org/Issues/Trade/What-Is-ISDS.
 David Gaukrodger & Kathryn Gordon, OECD Working Papers on International Investment 2012/03, Investor-State Dispute Settlement: A Scoping Paper for the Investment Policy Community 10 (OECD. Research, Working Paper, 2012).
 AFL-CIO, How Investor-to-State Dispute Settlement Threatens Public Welfare and Undermines Democracy, Corporate Court, at 1, available at http://www.aflcio.org/content/download/138571/3647761/version/2/file/AFL-CIO_ISDSReport_5.pdf.
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 Supra note 17.
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 Supra note 17.
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 Supra note 67 at 5.
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 Martin Dietrich Brauch, Exhaustion of Local Remedies in International Investment Law: Definition and Purpose of Exhaustion of Local Remedies, 02 (IISD Best Practice Series-January 2017).
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 Andrew Stephenson (Partner) & Lee Carroll (Special Counsel), The Investment Treaty Arbitration Review, The Trans-Pacific Partnership, Corps Chamb. Westgarth, Lawyers, Aug. 24, 2016, http://www.corrs.com.au/publications/corrs-in-brief/the-investment-treaty-arbitration-review-the-trans-pacific-partnership/.
 Supra note 57.
 Supra note 155.
 Allen & Overy, New investment protections offered in ground-breaking Trans-Pacific Partnership, Publications, Dec. 23, 2015, http://www.allenovery.com/publications/en-gb/Pages/New-investment-protections-offered-in-ground-breaking-Trans–Pacific-Partnership.aspx.
 Laurence Shore, Partner, Christian Leathley, Partner and Donald Roberson, Partner, The TPP and Investment Protection, Herbert Smith Freehills, South East Asia, The Americas, Dec. 04, 2015, https://www.herbertsmithfreehills.com/latest-thinking/the-tpp-and-investment-protection.
 Supra note 165.
 Supra note 174.
 Supra note 180.
 Article 9.5 (3) of the TPP Agreement, Investment Chapter (Chapter 9).
 Supra note 182.
 Supra note 186.
 Supra note 174.
 Supra note 190.
 Supra note 190.
 Ko-Yung Tung, Investor-State Dispute Settlement under the Trans-Pacific Partnership, 20 The Calif. Int’l. Law Journal. 23,1 (2015).
 Supra note 196.
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