A Comprehensive and Progressive Agreement for Trans-Pacific Partnership

Key points

  1. The ministers responsible for the Trans-Pacific Partnership (TPP) of 11 countries have announced that the core elements of a Comprehensive and Progressive Agreement for Trans-Pacific Partnership are agreed (CPTPP). While much of the original TPP looks to remain intact, 20 provisions of the TPP are suspended, in particular with respect to Investor–State Dispute Settlement (ISDS) disputes for initial approvals of investments and financial services. There are also 4 items to be finalised by the Parties’ consensus.
  2. The final impact of these changes can only be determined after the release of the full text. Current indications are that the differences will not significantly change the shape of ISDS under the TPP. Investors making investments into these 11 countries will still want to proactively consider how to take advantage of the protections given by this agreement if it comes into force.
  3. This is a significant step forward to implementing a mega-regional agreement for the Asia-Pacific region, which substantially is the form rejected by the United States early this year.

Continue reading

The European Court of Justice renders its opinion on the EU-Singapore free trade agreement: investment chapter is not within EU’s exclusive competence

On 16 May, 2017 the European Court of Justice (the Court) rendered its Opinion on the competence of the European Union to conclude the Free Trade Agreement (FTA) with Singapore. The Opinion recognises exclusive EU competence over most of the agreement and largely settles a long-standing dispute between the Commission and the Member States on the division of competences under the Lisbon Treaty.

Importantly, in the context of investor-state dispute resolution, the Court's Opinion is likely to render any agreement including protection for non-direct foreign investments or investor-state dispute settlement (ISDS) provisions a so-called "mixed agreement" which requires each of the Member States as well as the EU itself to become party, unless certain aspects commonly found in such agreements are removed or the Member States otherwise agree (discussed further below).  

The Opinion will have a major impact on the negotiation of future EU trade agreements, whether pending or anticipated (including the potential FTA between the UK and the EU following Brexit).

Continue reading

Singapore-ITLOS Joint Declaration: A further step towards developing Singapore as an Asian Disputes Hub

At a ceremony in Singapore on 31 August 2015, representatives of the International Tribunal for the Law of the Sea (ITLOS) and the Singaporean Ministry of Law signed a Joint Declaration for Singapore to provide facilities to ITLOS whenever it is desirable for ITLOS or a special chamber of ITLOS to exercise its functions in Singapore. ITLOS announced the arrangements in a joint press release, available here.

Established by the United Nations Convention on the Law of the Sea (UNCLOS or the Convention) in 1982, ITLOS sits to hear any dispute concerning the interpretation or application of the Convention. Currently, there are 167 parties to the Convention, which comprises 166 States and the European Union. Importantly, the United States has not signed or ratified the UNCLOS. Since it was founded in 1996, ITLOS has heard 24 cases (only five of which have been on the merits).

Continue reading

Alien Tort litigation comes to Singapore: international enforcement of judgments based on corporate human rights abuse

In Alberto Justo Rodriguez Licea and others v Curacao Drydock Co, Inc, the Singapore High Court dismissed an appeal against the enforcement of a multi-million dollar judgment issued in the United States awarding damages to Cuban plaintiffs under the US Alien Tort Statute (ATS).

In addition to providing useful guidance on the defences which may be raised to resist enforcement of a foreign judgment in Singapore, the judgment is reflective of a worldwide trend whereby courts are increasingly prepared to hear claims that corporations have violated human rights and to ensure that victims receive compensation.

Continue reading