Australia's embrace of investor state dispute settlement: a challenge to the social contract ideal?

This paper explores the origins of investor-state dispute settlement (ISDS) treaties and their implications for the Australian social contract. This analysis includes how and why ISDS emerged in NAFTA, was rebuffed with the failure of the Multilateral Agreement on Investment (MAI), and became incorporated into most subsequent bilateral US trade and investment agreements. The paper considers Australia's exposure to ISDS—first through using it in bilateral investment agreements in nations with inadequate governance mechanisms to support the rule of law, then turning against it when a multinational tobacco company tried to use the mechanism to overturn scientifically endorsed, democratically approved and constitutionally validated tobacco plain packaging measures. The paper concludes by exploring the hypothesis that an alternative governance vision can be achieved in which the system of investment arbitration and trade law is made coherent with presumptively more democratically legitimate normative systems such as constitutional and international law.     

Bilateral trade agreements as drivers of national and transnational benefit from health technology policy: implications of recent US deals for Australian negotiations with China and India

This article compares controversial health technology provisions in two important United States free trade agreements with developed nations: Australia and with South Korea. It examines the multinational corporate forces behind the medicines and medical devices components of these texts and their likely impacts upon Australian trade negotiations with China and India. It also examines the implications of some recent changes to US trade policy for this area in subsequent bilateral deals such as that with Peru. This article argues it is important that the Australian government change policy and, like the present Congress in the United States, now systematically approach such impending trade agreements with a view to assisting the partners’ regulatory frameworks to maximally enhance national and transnational benefit from their medicines and biotechnology industries.