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Journal of International Commercial Law JOURNAL OF INTERNATIONAL COMMERCIAL LAW ARTICLES INVESTMENT DISPUTE RESOLUTION UNDER THE PROPOSED TRANSPACIFIC PARTNERSHIP AGREEMENT: PRELUDE TO A SLIPPERY SLOPE? Leon E Trakman DO SOCIAL TIES MATTER IN CORPORATE GOVERNANCE? THE MISSING FACTOR IN CHINESE CORPORATE GOVERNANCE REFORM Yu-Hsin Lin NOTES THE ACE IN THE HOLE: WHY THE UNLAWFUL INTERNET GAMBLING ENFORCEMENT ACT DID NOT CATEGORICALLY BAN ONLINE POKER IN THE UNITED STATES Thomas A. Flynn VOLUME 5 FALL ISSUE NUMBER 1 JOURNAL OF INTERNATIONAL COMMERCIAL LAW VOLUME 5 FALL ISSUE NUMBER 1 CONTENTS ARTICLES INVESTMENT DISPUTE RESOLUTION UNDER THE PROPOSED TRANSPACIFIC PARTNERSHIP AGREEMENT: PRELUDE TO A SLIPPERY SLOPE? Leon E Trakman 1 DO SOCIAL TIES MATTER IN CORPORATE GOVERNANCE? THE MISSING FACTOR IN CHINESE CORPORATE GOVERNANCE REFORM Yu-Hsin Lin 39 NOTES THE ACE IN THE HOLE: WHY THE UNLAWFUL INTERNET GAMBLING ENFORCEMENT ACT DID NOT CATEGORICALLY BAN ONLINE POKER IN THE UNITED STATES Thomas A. Flynn 75 JOURNAL OF INTERNATIONAL COMMERCIAL LAW VOLUME 5 FALL ISSUE NUMBER 1 Editor-in-Chief AZADEH MALEK Executive Editor Managing Editor DAMIEN SMITH KISHORE KHAN Senior Articles Editor Senior Notes Editor Senior Research Editor GABRIEL BOISVERT THOMAS FLYNN ALLEN GIBBY Articles Editor Notes Editors Research Editors LAURA CROCKETT JASON ISRAEL DIANA ZARICK ELIZABETH HUFFMAN JACOB SOLOMON Articles Outreach Editor Symposium Editor Notes Publication Editor KATIE DUNKELBERGER ALEXANDRA BUSCH NICK DILENSCHNEIDER Associate Editors JUSTIN BERGER JORDAN NYE Senior Members AFSHEEN EESHAT JOHN MAGRUDER JOHN MAVRETICH KARL MOSES JR. Candidate Members ALYSSA COFFEY MARK HAGEDORN JACQUELINE NGUYEN ERIC FRICK CAMERON HAMES JASON SARFATI CHRISTOPHER J. GARDNER YOOJUN LEE ALENA THOMAS BRYAN MULCAHEY Faculty Advisor JAMES BYRNE Special Thanks WEI FAN Cite as 5 GEO. MASON J. INT’L COM. L. ___ (2013) The George Mason Journal of International Commercial Law is published three times per year. The George Mason Journal of International Commercial Law can be contacted as follows: George Mason Journal of International Commercial Law 3301 N. Fairfax Drive, Arlington, VA 22201 http://www.georgemasonjicl.org/ The George Mason Journal of International Commercial Law is a traditional student-edited legal periodical at the George Mason University School of Law in Arlington, Virginia. Providing international scholars and practitioners a forum to exchange, develop, and publish innovative ideas, the Journal is uniquely situated to address the legal issues affecting international commerce. The Journal publishes scholarly, concise, and practical material from leading scholars and practitioners to provide a source of authority and analysis for the advancement of uniformity in the law underlying international commerce. Subscriptions: Single issues are available for download online at http://www.georgemasonjicl.org. Print versions are available by request to the Managing Editor at the mail address listed above or by email at: [email protected]. Single issues may be purchased for $15 per copy for domestic and $18 for foreign subscribers. Submissions: The Editors welcome submissions of unsolicited manuscripts. The George Mason Journal of International Commercial Law seeks to publish articles and essays making a significant, original contribution to the fields concerning international commerce. Footnotes should follow the form prescribed in The Bluebook: A Uniform System of Citation (19th ed. 2010). Articles must be both well written and completely argued at the time of submission. Manuscripts and editorial correspondence should be addressed to Senior Articles Editor, George Mason Journal of International Commercial Law, at the address listed above or by email at: [email protected]. ©2013 by Journal of International Commercial Law. All Rights Reserved 2013] 1 INVESTMENT DISPUTE RESOLUTION UNDER THE PROPOSED TRANSPACIFIC PARTNERSHIP AGREEMENT: PRELUDE TO A SLIPPERY SLOPE? Leon E Trakman* INTRODUCTION The potential of the Transpacific Partnership (“TPP”) to grow into a multilateral investment agreement is significant given the prospective number of participating members and the potential economic and political scope of the free trade and investment area. TPP investment enthusiasts are likely to envisage it as the continuation of an evolving multilateral investment process to replace in part the multilateral investment agreement that failed at the end of the 1990s1 and as a template for other regions to replicate.2 However economic and political significance are measured, a concluded Transpacific Partnership Agreement (“TPPA”) will have an enormous impact on global investment law and practice, especially considering that global foreign direct investment (“FDI”) has grown geometrically since 1970, exceeding $1.5 trillion by 2012.3 * Professor of Law and Past Dean, UNSW Law School; B Com, LLB (Cape Town), LLM, SJD (Harvard). I am indebted to colleagues at the Workshop on the ICSID held in Xi'an Jiaotong University, in China on 25-30 June 2012, organised by Professor Wenhau Shan, for their insights; to colleagues at the Workshop on the TPP negotiations held at the Melbourne Law School on 18 August 2012 organized by Tania Voon; and to Mark Feldman, Mark Kantor, Luke Nottage. Simon Brimsmead and Shiro Armstrong for their comments on a draft of this article. Particular thanks are owed to Kunal Sharma for his able research assistance. For background information, see Leon E. Trakman and Nick W. Nanieri, REGIONALISM IN INTERNATIONAL INVESTMENT LAW ch 12 (Oxford University Press, 2013). 1 On attempts to develop a multilateral investment treaty, see CHRISTOPH SCHREUER & RUDOLF DOLZER, PRINCIPLES OF INTERNATIONAL INVESTMENT LAW, ch 1 (2008) [hereinafter SCHREUER & DOLZER]; Stephan W. Schill, The Multilateralization of International Investment Law, 1-5 (Society of Int’l Econ. L., Working Paper No. 18/08 2008) [hereinafter Schill Working Paper]; See also Organization for Economic Co-operation and Development, The Multilateral Agreement on Investment Negotiating Text (OECD, Apr. 24, 1998), http://italaw.com/documents/MAIDraftText.pdf [hereinafter OECD Agreement]; Katia Tieleman, The Failure of the Multilateral Agreement on Investment (MAI) and the Absence of a Global Public Policy Network, Global Public Policy Institute 17–20 (2000), http://www.gppi.net/fileadmin/gppi/Tieleman_MAI_GPP_Network.pdf. 2 See generally Schill Working Paper, supra note 1, ch. I-VII (discussing non-ICSID methods of multilateralization and investment jurisprudence); Steffen Hindelang, Bilateral Investment Treaties, Custom and a Healthy Investment Climate – The Question of Whether BITs Influence Customary International Law Revisited, 5 J. WORLD INVESTMENT & TRADE 789 (2004). 3 See U.N. CONF. ON TRADE AND DEVELOPMENT, WORLD INVESTMENT REPORT 2012, U.N. Doc. UNCTAD/WIR/202, U.N. Sales No. E.12.II.D.3 at xi (2012), [hereinafter WORLD INVESTMENT REPORT (2012)] available at http://www.unctad-docs.org/files/UNCTAD-WIR2012- Full-en.pdf. 2 GEO. MASON J. INT’L COM. LAW [VOL. 5:1 Despite the potential benefit of a TPPA, there are controversial aspects in the unfolding TPP investment negotiations. The first aspect relates to Australia’s participation in the negotiations on the proposed investment chapter of that Agreement,4 with its position that it will not accept investor- state arbitration (“ISA”), which is the predominant mechanism for resolving investor-state disputes.5 This raises significant questions about the ramifications of country specific exemptions from provisions in the TPPA. The second aspect relates to the prospects of one or more of the growing number of TPP participants changing their negotiating positions either to follow Australia’s lead in rejecting ISA, or setting country specific conditions to their participation. Although China is not participating in the TPP negotiations, China, Canada and Mexico are recent participants and Japan joined the TPP negotiations in August 2013.6 As a result, more is at stake in the TPP negotiations than Australia’s rejection of ISA, although the ramification of that rejection itself is significant.7 The prospect of Australia seeking an exemption from ISA within a TPPA chapter on investment is probable at this time following from Australia’s 2011 Trade Policy Statement that it would no longer enter into investment treaties 4 See Press Release, Craig Emerson, Austl. Trade Minister, Gillard Government Policy Statement: Trading Our War to More Jobs and Prosperity (Apr. 2011) [hereinafter Emerson Policy Statement]. For a comment on the Australian Government’s Policy Announced on April 12, 2011, see Jurgen Kurtz, Australia’s Rejection of Investor-State Arbitration: Causation, Omission and Implication, 27 ICSID REV. 65 (2012); Luke Peterson, Australia Rejects ISA Provision in Trade Agreements, Don’t Trade Our Lives Away (Apr. 14, 2011) http://donttradeourlivesaway.wordpress.com/2011/04/19/australia-rejects-investor-state- arbitration-provision-in-trade-agreements [hereinafter Peterson Blog]; Leon E. Trakman, Investor State Arbitration or Local Courts: Will Australia Set a New Trend?, 46 J. WORLD TRADE 83, (2012) [hereinafter Trakman WORLD TRADE]; see Leon E. Trakman, Investor State Arbitration or Local Courts: Will Australia set a new Trend, REGIONALISM IN INTERNATIONAL INVESTMENT LAW, (Leon E. Trakman & Nicola Ranieri, eds., 2013) [hereinafter Trakman Investor-State Arbitration]. 5 See generally CHRISTOPHER DUGAN, DON WALLACE, JR & NOAH RUBINS, INVESTOR- STATE ARBITRATION (2008); OXFORD HANDBOOK
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