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The Trans-Pacific Partnership and the global pivot to Asia

29th January 2017

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Anthea Roberts is a specialist in public international law, investment treaty law and arbitration, and comparative international law. Prior to joining the ANU, Anthea was an Associate Professor at the London School of Economics , a Visiting Professor at Columbia Law School and a Visiting Professor at Harvard Law School. She is also currently a Visiting Professor on the Masters of International Dispute Settlement at the Graduate Institute/University of Geneva. In 2017, Anthea will serve as one of the two inaugural Legal Fellows for the Australian Department of Foreign Affairs and Trade as part of their new Diplomatic Academy.

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ANU School of Regulation and Global Governance (RegNet) experts predict that Trump’s withdrawal from the Trans-Pacific Partnership (TPP) will bring the Regional Comprehensive Economic Partnership (RCEP) to the forefront of Australia’s trade agenda.

This mega-regional economic agreement, which is being negotiated between the 10 ASEAN (Association of South-East Asian Nations) governments and their six Free Trade Agreement (FTA) partners: Australia, China, India, Japan, New Zealand and South Korea, has now gained worldwide attention as part of a “Global Pivot to Asia”, says investment treaty law expert, Associate Professor Anthea Roberts.

“The TPP, which did not include China, was an important element of the US Pivot to Asia. RCEP, which does not include the United States, was often seen as China’s response to the TPP. Now that the United States has withdrawn from the TPP, all eyes are on RCEP to see what sort of deal might be achieved.”

Associate Professor Roberts says that, although Trump’s exit from the TPP brings with it uncertainty, constant change and adaptation in investment treaties is not a new phenomenon.

“There are more than 3000 investment treaty agreements in existence and the content and form of these treaties has changed markedly in the last 15 years.”

“One reason for these changes is that many states have shifted their understanding of what is in their interests in entering into these treaties. For instance, the United States used to be primarily concerned about protecting its investors abroad, but now it is also concerned about being sued. China, by contrast, used to be mainly concerned about being sued by foreign investors, but now it is also interested in protecting Chinese companies that are investing abroad. Both changes in interest have led to considerable evolution in these states’ investment treaty practice.”

“More generally, the investment treaty field is evolving very quickly, and many changes are afoot. These include introducing transparency provisions in treaties; expressly protecting the rights of states to regulate in the interests of public health and the environment; and proposals for introducing an international investment court or an appellate mechanism,” says Roberts.

With the field moving rapidly, policy considerations and negotiations should be constantly scrutinized, says Roberts.

“That’s why academics within RegNet are collaborating in this field – our Trade, Investment and IP cluster brings together a world class team that is working on vital issues about international trade and investment treaties, including how the rise of China will impact the content and form of these treaties, what public health consequences arise from these treaties, and how these treaties’ intellectual property impact upon societies.”

“As part of ANU College for Asia and the Pacific, RegNet is ideally placed to analyse how the international trade and investment treaty regime is likely to – and should – develop in the Asian Century. We are approaching this question in a multi-disciplinary way, connecting lawyers with political scientists and health policy experts to give a well-rounded analysis of this dynamic and ever-changing field.”

Read more on the trade, investment and intellectual property cluster at RegNet.

Updated:  10 August 2017/Responsible Officer:  Director, RegNet/Page Contact:  Director, RegNet