Abstract
This paper highlights two sets of significant developments for businesspeople, legal advisors and policy-makers relating to international arbitration in the resources sector, particularly from an Australian perspective. Part 9.2 deals with international commercial arbitration (ICA), primarily between private firms, pointing out that a ‘legislative black hole’ arises for certain ICA agreements with the seat in Australia which were concluded before amendments to the International Arbitration Act (Cth) (IAA) commenced on 6 July 2010. Such ICA clauses are commonly included in long-term contracts, characteristic of the resources sector, so the IAA required amendment to provide support for ICA and these business relationships. A Bill introduced in 29 October 2014 aimed to fill this black hole. Part 9.3 turns to treaty-based investor-state arbitration (ISA), especially as it impacts on outbound investors from Australia. It reiterates opposition to the ‘Gillard Government Trade Policy Statement’, applied from April 2011 until the Abbott Government took power from 7 September 2013 and reverted to a case-by-case approach to including ISA protections in investment treaties. This Statement changed over two decades of treaty practice by insisting that Australia would no longer countenance any form of ISA in future treaties—even with developing countries with local laws and court systems that may not meet minimum international standards. We highlight problems that arise from such a stance, also proposed in a 2014 Bill in the Australian Senate from a minority Greens Party senator, by discussing two major developments in Indonesian law in 2012, both relevant to the resources sector. They suggest how international investment treaties (including two between Australia and Indonesia—both with ISA protections, which remain in effect, albeit perhaps limited in the earlier 1992 treaty) can help mitigate adverse effects on foreign investors. Part 9.3.1 discusses regulations issued to implement provisions of Indonesia’s Mining Law requiring eventual divestment of majority ownership to locals. Part 9.3.2 analyses a subsequent Constitutional Court decision to disband Indonesia’s regulator for upstream oil and gas exploration. Both examples highlight the need for Australia to retain ISA in addition to substantive law protections in any renegotiated or new investment treaty with Indonesia, including the bilateral free trade agreement under negotiation since September 2012, despite Indonesia’s announcement in March 2013 that it would be reviewing its 67 bilateral investment treaties.
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Notes
- 1.
On Japan’s less visible (and more diversified) investments, see Drysdale (2010).
- 2.
Available (through the National Library of Australia archives) via http://asiancentury.dpmc.gov.au/. Accessed 16 April 2014.
- 3.
The problem was first highlighted in Garnett and Nottage (2011), 27–28. On the ubiquity of long-term contracts in Australia, particularly in the resources sector, see generally Dharmananda and Firios eds (2013), reviewed at blogs.usyd.edu.au/japaneselaw/2014/09/ltc.html. Accessed 12 August 2014.
- 4.
Compare generally Keane (2012).
- 5.
For critiques, see Nottage (2011a) and Trakman (2012). The Statement is no longer available on Australian government websites but is reproduced via http://blogs.usyd.edu.au/japaneselaw/2013/12/isds_back.html. Accessed 16 April 2014.
- 6.
See http://www.dfat.gov.au/fta/iacepa/. Accessed 16 April 2014.
- 7.
See http://www.dfat.gov.au/fta/isds-faq.html. Accessed 16 April 2014. For constructive suggestions for treaty (re)drafting, see, for example, Nottage and Miles (2009); Burch et al. (2012); Campbell et al. (2013).
- 8.
See Monichino et al. (2012), Figure 1. A large proportion of these involve enforcement of foreign awards, so this could reflect the growing numbers of ICA cases being filed world-wide through major arbitral centres.
- 9.
Nottage (2013d). See also an updated statistical Appendix at http://blogs.usyd.edu.au/japaneselaw/2013FedCt_NottageSummaryTable_LN06.pdf. Accessed 16 April 2014.
- 10.
Ibid, for the full and ongoing saga; see also Monichino and Nottage (2013) and, most recently, TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd [2014] FCAFC 83 (upholding the trial court’s rejection of the Chinese manufacturer’s “public policy” challenge to award enforcement).
- 11.
Castel Electronics Pty Ltd v TCL Air Conditioner (Zhongshan) Company Ltd [2012] FCA 21 (23 January 2012).
- 12.
Nottage and Garnett (2010), 27–28.
- 13.
(1957) 96 CLR 261.
- 14.
Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd (2012) 262 FLR 1.
- 15.
Ibid, para. [93].
- 16.
Garnett and Nottage (2012).
- 17.
Commercial Arbitration Act 2010 (NSW); Commercial Arbitration (National Uniform Legislation) Act 2011 (NT); Commercial Arbitration Act 2011 (SA); Commercial Arbitration Act 2011 (Vic); Commercial Arbitration Act (Tas); Commercial Arbitration Act 2012 (WA); Commercial Arbitration Act 2013 (Qld).
- 18.
In relation to whether a choice of International Chamber of Commerce (ICC) Arbitration Rules indicates that the parties impliedly intended to opt out of the ML under the old s21, compare Cargill International SA v Peabody Australia Mining Ltd (2010) 78 NSWLR 533 (finding ‘plainly wrong’ such reasoning by the Queensland Court of Appeal in Australian Granites Ltd v Eisenwerk Hensel Bayreuth Dipl-Ing GmbH (2001) 1 Qd R 461 (Eisenwerk)) and Queensland (refusing subsequently to disavow Eisenwerk (2001) 1 Qd R 461 in Wagners Nouvelle Caledonie Sarl v Vale Inco Nouvelle Caledonie SAS [2010] QCA 219 (20 August 2010), although that involved UNCITRAL Rules). In Lightsource Technologies Australia Pty Ltd v Pointsec Mobile Technologies AB (2011) 250 FLR 63, the Australian Capital Territory (ACT) Supreme Court also recently adopted the approach in Eisenwerk (2001) 1 Qd R 461, which has been widely criticised as essentially a ‘category error’: adoption of Rules amplifies the parties’ arbitration agreement, which are trumped by any mandatory rules of the lex arbitri.
- 19.
Above note 17. However, the ACT has not yet introduced any new CAA legislation.
- 20.
Monichino (2012).
- 21.
See generally Sampford (2006), Gerangelos (2009), p. 306. However, particular attention would need to be paid to any relevant international arbitrations already commenced with the seat in Australia, if IAA s 21 were restated as clearly applying retrospectively, as the effects on the parties (and arbitrators) involved would be especially profound.
- 22.
Available at http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=s980. Accessed 16 April 2014. As of 15 April 2015, the Bill had not been enacted by both Houses of Parliament. In any event, the proposed additional s 21(2) for the IAA does not completely fill the legislative black hole, as it provides that: ‘Subsection (1) applies to an arbitration arising from arbitral proceedings that commence on or after the commencement of this subsection, whether the arbitration agreement giving rise to the arbitration was made before, on or after 6 July 2010’. This wording does not seem to cover the situation of an international arbitration already commenced, leaving the courts to try to divine the legislative intention for such situations.
- 23.
Above note 2.
- 24.
Findlay (2012).
- 25.
Cf. Hufbauer and Stephenson (2014).
- 26.
Above note 5.
- 27.
Mangan (2010).
- 28.
Bath and Nottage (2011).
- 29.
Losari (2012).
- 30.
Nottage (2011b).
- 31.
Nottage (2011a).
- 32.
- 33.
Robertson and Leeks (2012).
- 34.
See http://acci.asn.au/Research-and-Publications/Media-Centre/Media-Releases-and-Transcripts/Global-Engagement/Australian-Foreign-Investment-Requires-Right-to-Su.aspx. Accessed 16 April 2014. For complications for Japan arising from Australia’s stance on ISA, see also, for example, Nottage (2013b).
- 35.
See generally, for example, Pakpahan (2012). All other ‘ASEAN+’ FTAs include ISA protections, except for the one with Japan. The latter lacks an investment chapter altogether, but this is mitigated by bilateral FTAs or BITs with all major ASEAN economies. See generally Hamamoto and Nottage (2013), with a more detailed analysis of Japan’s treaty-based ISA protections at http://ssrn.com/abstract=1724999. Accessed 16 April 2014. See also generally Bath and Nottage (2015) regarding ASEAN+ treaties.
- 36.
Earlier and shorter versions of this section appeared in http://www.eastasiaforum.org/2012/05/13/divestment-of-foreign-mining-interests-in-indonesia/ and http://www.eastasiaforum.org/2012/05/14/indonesian-investments-and-international-treaty-law/ (with Dr Brett Williams), also at http://ssrn.com/abstract=2175951. Both accessed 16 April 2014.
- 37.
See generally, for example, http://www.bakermckenzie.com/ALAPMiningRegulationsMar12/. Accessed 16 April 2014.
- 38.
Bachelard (2012).
- 39.
Constitutional Court Decision 2/SKLN-X/2012.
- 40.
Jakarta Globe (2012).
- 41.
Ibid.
- 42.
Ker and Yeates (2012).
- 43.
http://www.austlii.edu.au/au/other/dfat/treaties/ATS/1993/19.html. Accessed 16 April 2014.
- 44.
http://www.austlii.edu.au/au/other/dfat/treaties/ATS/2010/1.html#ch11. Accessed 16 April 2014.
- 45.
See http://www.meti.go.jp/english/policy/external_economy/trade/FTA_EPA/indonesia.html. Accessed 16 April 2014.
- 46.
- 47.
Nottage and Weeramantry (2012).
- 48.
See https://icsid.worldbank.org/ICSID/Index.jsp. Accessed 16 April 2014.
- 49.
This jurisdictional hurdle was also problematic in the only ISA claim ever brought under the old ASEAN investment treaty system, which required prior approval in writing (Yaung Chi Oo v Myanmar (2003) 42 ILM 540). However, elsewhere he has remarked that the situation may be different under the 2009 ASEAN Comprehensive Investment Agreement because that treaty now requires states to specify procedures for admitting investments. See Sornarajah (2011), p. 246. See also generally Bath and Nottage (2015); and Brown (2015).
- 50.
- 51.
Planet Mining Pty Ltd v Republic of Indonesia (ICSID Case No ARB/12/14 and 12/40).
- 52.
Footnote 29 of the AANZFTA clarifies that for Vietnam or Thailand this means registered and/or approved in writing.
- 53.
As detailed by Butt (2011).
- 54.
Although this too is subject to reservations under Art. 64, more detailed and arguably more pro-investor than under AANZFTA.
- 55.
Nottage (2014). However, there is no mention of Indonesia reviewing its current FTAs.
- 56.
Nottage (2013c).
- 57.
TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia [2013] HCA 5 (13 March 2013).
- 58.
See, for example, Potesta (2012).
- 59.
Brown (2012).
- 60.
For a critical assessment of this aspect of the tribunal’s reasoning, and implications for other Australian BITs containing similar wording, see Nottage (2014).
- 61.
Burch et al. (2012).
- 62.
See generally, for example, Brown (2013).
- 63.
Kurtz (2012).
- 64.
Constitutional Court Decision 36/PUU-X/2012, reviewing Law 22 of 2001 on Oil and Natural Gas (Oil and Natural Gas Law case (2012)). See generally Butt and Siregar (2013), upon which this description of the case draws.
- 65.
Oil and Natural Gas Law case (2012), para. [3.13.5].
- 66.
Constitutional Court Decision 001-021-022/PUU-I/2003, reviewing Law 20 of 2002 on Electricity (Electricity Law case (2003)).
- 67.
Although the court did not explain why it decided to rank the activities and how it devised the ranking. The rationale for ranking direct management as the most important aspect of state control and regulation as the equal least important is unclear, because it appears that ‘regulation also [includes] supervisory activities, as well as license-granting, standard-setting, in addition to the traditional understanding of enacting rules’ (Afghani 2013).
- 68.
Oil and Natural Gas Law case (2012), para. [3.12].
- 69.
Ibid, para. [3.13.3]. In his sole dissent, Justice Harjono agreed that those contracts bound the state, but disagreed with the majority that any ensuing constraints on the state breached Article 33 for interfering with the state’s ‘control’ of the natural resources to which the contract applied. Harjono emphasised that Indonesia is a ‘law state’ (negara hukum) and that the state could not simply use its power over national resources as it deemed fit once it had entered into such a contract. Rather, for Harjono, the state control requirement was met because the state controlled BP Migas. Its chairperson was appointed and dismissed by the president, after consultation with the national parliament. According to Harjono, the state (through BP Migas) exercised control over the sector when it negotiated contracts and awarded concessions. After agreements had been made and contracts signed, the control had already been exercised and the Indonesian government was bound by the contract.
- 70.
Oil and Natural Gas Law case (2012), para. [3.22].
- 71.
Prawesti (2013).
- 72.
Oil and Natural Gas Law case (2012), para. [3.21].
- 73.
Prawesti (2013) (citations omitted). Originally, at least, Niko is a Canadian company; Total is French; Chevron and Vico (previously Huffco) are American.
- 74.
See now, for example, local content rules, which some commentators suggest may breach WTO obligations: http://www.bakermckenzie.com/files/Publication/a6aaa8ec-a172-4423-bc7f-2de74d4ad609/Presentation/PublicationAttachment/05690e99-fe3f-4389-bbf9-4f33065467a4/al_jakarta_oilgasrules_apr13.pdf. Accessed 16 April 2014.
- 75.
Prawesti (2013).
- 76.
Above section 3.1.1.
- 77.
Prawesti (2013).
- 78.
Hertzmark (2007).
- 79.
Jong (2013).
- 80.
Supriyatna (2013).
- 81.
- 82.
See generally Butt (2014).
- 83.
Kusumaatmadja (2003), p. 92.
- 84.
Ibid.
- 85.
- 86.
The ‘hierarchy of laws’ is a list of types of laws within the Indonesian legal system indicating their relative authority. It is contained in Article 7(1) of Law 12 of 2011 on Law-Making. See Butt (2011).
- 87.
Agusman (2010).
- 88.
Nottage and Weeramantry (2012).
- 89.
See generally also Campbell et al. (2013).
- 90.
Callick (2013).
- 91.
Priest (2013).
- 92.
See respectively http://www.dfat.gov.au/fta/kafta/; http://trademinister.gov.au/releases/Pages/2014/ar_mr_141117.aspx?ministerid=3 and http://www.dfat.gov.au/fta/jaepa/. Accessed 3 December 2014.
- 93.
Nottage (2014).
- 94.
See http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Foreign_Affairs_Defence_and_Trade/Trade_and_Foreign_Investment_Protecting_the_Public_Interest_Bill_2014 (including a Submission by Nottage). Accessed 16 April 2014.
- 95.
Nottage (2015).
- 96.
Above n 22.
- 97.
Nottage (2013d).
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Nottage, L., Butt, S. (2015). Recent International Commercial Arbitration and Investor-State Arbitration Developments Impacting on Australia’s Investments in the Resources Sector. In: Moens, G., Evans, P. (eds) Arbitration and Dispute Resolution in the Resources Sector. Ius Gentium: Comparative Perspectives on Law and Justice, vol 43. Springer, Cham. https://doi.org/10.1007/978-3-319-17452-5_9
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DOI: https://doi.org/10.1007/978-3-319-17452-5_9
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