The China-Australia Free Trade Agreement: A 21st-Century Model

Description

This book provides readers with a unique opportunity to learn about one of the new regional trade agreements (RTAs), the China–Australia Free Trade Agreement (ChAFTA), which has been operational since December 2015 and is now at the forefront of the field. This new agreement reflects many of the modern and up-to-date approaches within the international economic legal order that must now exist within a very different environment than that of the late eighties and early nineties, when the World Trade Organization (WTO) was created. The book, therefore, explores many new features that were not present when the WTO or early RTAs were negotiated. It provides insights and lessons about new and important trade issues for the twenty first century, such as the latest approaches to the regulation of investment, twenty-first century services and the emerging digital/knowledge economy. In addition, this book provides new understandings of the latest RTA approaches of China and Australia. The book’s contributors, all foremost experts on their subject matter within this field, explore the inclusion of many traditional trade and investment agreement features in the ChAFTA, showing their continuing relevance in modern contexts. Studies in International Trade and Investment Law: Volume 18 Preface Contents List of Contributors List of Abbreviations Part I: An Introduction to ChAFTA 1. Australia, China and ChAFTA: Punching Above both Belt and Weight I. Introduction II. Australia and China: Punching Above Weight and Waistline III. The Relevance of ChAFTA"s Approaches for the Rest of the World IV. Conclusion 2. An Analytical Introduction to ChAFTA: Features and Challenges I. Introduction II. The Features of ChAFTA: A Problem-Solving Approach? III. The Challenges to ChAFTA IV. Concluding Remarks: The Implications of ChAFTA Part II: The Contexts within which ChAFTA exists 3. A Comparative Context: Ensuring Australian and Chinese Legal Systems Coexist to Facilitate Harmonious and Trustworthy Trade I. Establishing Trustworthiness in Trade Arrangements II. Relevant Specifics of ChAFTA Arrangements III. Differences Between Legal Systems IV. A Four-Part Framework for Improving Trustworthiness V. The Australian Legal System VI. Chinese Law and Practice VII. Longer-Term Considerations VIII. Learning from Confucius IX. Conclusion 4. ChAFTA's External Impact on Related Mega-FTAs I. Introduction: The Need to Look at the External Importance of ChAFTA to Other Regional Agreements II. The Impact of the Geographic Overlaps between ChAFTA, the RCEP and TPP III. ChAFTA's Implications for the TPP IV. The Implications of ChAFTA on the RCEP's Negotiations V. Some Concluding Remarks 5. The China–Australia FTA and Australia's FTAs with Other Asian Countries: Their Implications for Future SOE Regulation I. Introduction II. Australia's FTAs and SOE Regulations III. SOE Regulations Under SAFTA, KAFTA and JAEPA IV. Competitive Neutrality in the Asia-Oceania Network V. ChAFTA and Other FTAs Concluded by China VI. SOE Regulation under the TPP Agreement VII. Future SOE Regulation and ChAFTA VIII. Conclusion Part III: Insights and Lessons for Trade in Services 6. Services Liberalisation in ChAFTA: Progress Assessment and the Way Forward I. Introduction II. ChAFTA and the Services Industry and Trade between China and Australia III. Services Liberalisation in ChAFTA: Horizontal and Sectoral Commitments IV. Services Scheduling in ChAFTA: From Solo to Duet of 'Negative List Approach' V. Conclusion 7. Culture-Oriented Mode 4 under ChAFTA: Policy Considerations I. Introduction: Defining Culture-Oriented 'Mode 4' II. Stocktaking of Mode 4 Commitments: GATS-Plus? III. Culture-Oriented Mode 4 under ChAFTA: More Restrictions? IV. Concluding Remarks: From Kung Fu Panda to Kung Fu Koala 8. Breakthrough or Standstill? China's Liberalisation of Legal Services under ChAFTA I. Introduction II. The Legal Services Market in China III. China's Liberalisation of Legal Services IV. China's Regulation of Foreign Legal Practices V. Observations and Implications VI. Conclusion 9. Trade in Education Services under ChAFTA: What does it Mean for Australia? I. Overview II. How does ChAFTA Improve Market Access to Education Services? III. What is Good for Australia, What is Not, and What is Unclear? IV. What Else Affects Australia"s Trade in International Education with China? V. What Does it All Mean for Australia? VI. Conclusion Part IV: Insights and Lessons for the Regulation of Investment 10. Substantive Provisions in ChAFTA's Investment Chapter I. Background: China-Australia Investment and Investment Policies II. The Two-Stage Process of Negotiating Investment Commitments in ChAFTA and the Work Programme III. Substantive Provisions of the Investment Chapter IV. Future Steps and the Work Programme V. Conclusion 11. Australia, China and the Coexistence of Successive International Investment Agreements I. Introduction II. The Current Australia–China Investment Framework: ChAFTA and the BIT III. The Future Work Programme on Investment: ChAFTA Article 9.9 IV. Continuing BIT Obligations: VCLT Article 30 and ChAFTA Article 1.2 V. The Limited Role of ChAFTA in Interpreting the BIT: VCLT Article 31(3) VI. Resolution through Termination of the BIT VII. Conclusion 12. A Comparative Review of the Investor–State Arbitration Clause in ChAFTA from China's Perspective: Moving Forwards or Sideways? I. Introduction II. IIA Drafting and ISA Experiences: An Overview III. The ISA Clause in ChAFTA: Scope of Arbitrable Matters IV. Investor–State Arbitration Clause in ChAFTA: Concurrent Treaties and Transition Clauses V. Investor–State Arbitration Clause in ChAFTA: Contracting Parties' Joint Decision in Treaty Interpretation VI. Enforcement of ISA Awards and the Appeal System VII. An Evaluation of the ISA Clause in ChAFTA VIII. Conclusion 13. Investor–State Dispute Settlement and the Australian Constitutional Framework I. Introduction II. Overview of ISDS III. The Australian Constitutional Framework IV. Authority to Enter into IIAs Containing ISDS Provisions V. The Constitutionality of the Enforcement of ISDS Awards by Australian Courts VI. Conclusion Part V: Insights and Lessons on IEL and the Knowledge Economy 14. E-Commerce in ChAFTA: New Wine in Old Wineskins? I. Introduction II. Regulation of E-Commerce in the WTO III. Regulation of E-Commerce in ChAFTA IV. Assessment of the ChAFTA Provisions V. Conclusion 15. Expanding the E-Commerce Chapter in ChAFTA: A Green Box, Orange Box and Red Box Approach I. Introduction II. Green Box III. Orange Box IV. Red Box V. Conclusions and Prospects 16. The Ideas Boom: The Innovation Economy in the Post-ChAFTA Australia–China Relationship I. Introduction II. The Ideas Boom III. Intellectual Property for China and Australia IV. Chapter 11 of ChAFTA V. Future Dynamics VI. Combined Forces under ChAFTA VII. Conclusion Index