Tania Voon

The shift from multilateralism to regionalism, plurilateralism and bilateralism in international trade negotiations, amongst others, changed the focus of the academic debate. The challenge of free trade agreements rather than of the WTO now occupy most of the discussions of the relevant epistemic communities all over the world; a trend that is likely to intensify since the conclusion of the TTP and the advancement of the negotiations on the TTIP. This special issue of the British Journal of American Legal Studies, conceived just before the unexpected conclusion of the TTP negotiations, responds to the need for research on the recent U.S. free trade agreements. It does not intend to provide a comprehensive analysis of the problems related to the rise of these agreements or of the content of the agreements themselves. Its aim is rather to focus on selected issues arising from the different obligations included in these agreements.

Twelve distinguished international trade and investment law scholars across the world were invited to explore key aspects of particular U.S. free trade agreements. In his introduction David A. Gantz explores the historical changes in U.S. trade policy and the shift from the support of multilateral rules to the embracement of regional and bilateral trade agreements. Christian Pitschas focuses on the on-going negotiations for the TTIP and on the possible impact of the TTIP on the multilateral trading system and developing countries. Tania Voon and Elizabeth Sheargold analyze the motives and the negotiation dynamics of the chapters relating to investment, services, intellectual property and regulatory coherence of the recently concluded TPP. Rodrigo Monardes analyzes the liberalization of trade in services under the NAFTA negative list approach on the basis of the Chile-United States Free Trade Agreement. Relying on the experience of the Australia-United States Free Trade Agreement, Stephen R. Tully discusses the standards of intellectual property protection and their impact for U.S. trading partners. Haydn Davies analyses the effects of investor-state dispute settlement mechanisms of NAFTA, the European Union-Canada Comprehensive Economic Trade Agreement, the TTP and the draft TTIP on national environmental rules and, in particular, on the precautionary principle. Stephan W. Schill and Heather L. Bray focus on the influence of NAFTA and U.S. practice on the substantive rules governing investor-state relations of the Mega-Regionals. Jaemin Lee explores the dispute settlement’ provisions of the free trade agreements concluded between the United States and Korea, Peru, Panama and Colombia. Using the TPP as her primary example, Phoenix X. F. Cai analyzes regulatory coherence obligations and the role of international standard setting organizations. Maria Panezi, finally, examines the relation between preferential trade agreements and WTO rules with particular focus on the problem of transparency and the limits of the Doha Transparency Mechanisms.

As the vision of the TPP as a living agreement recedes, it nevertheless offers a window into the negotiation of trade and investment agreements and the negotiated positions of the 12 TPP countries on a range of matters of crucial importance to the global economy today. Given the rise of nationalism reflected in recent world events, we are pleased to be part of a community engaging with the TPP and its lessons for the future.

In reading and re-reading just some of Professor John H. Jackson's extensive works shedding light on the relationship between the World Trade Organization (WTO) and general international law, we have discovered his voice again. Within a few sentences , the elegance of his writing, the immediacy of his ideas, the breadth and depth of his analysis, all forcefully proclaim his significance to the field of international economic law, with no need to examine his long and impressive biography and bibliography. In those circumstances, we ourselves write with trepidation. It seems unfair to comment at all, with no opportunity for an 'author's response'.

International trade and international investment agreements typically contain provisions requiring the parties to comply with good governance principles, such as procedural fairness and transparency. These provisions are increasingly the subject of disputes before international tribunals. The scope of these obligations is often unclear, as treaty provisions usually employ broad standards rather than specific rules. For example, the requirement to accord investors ‘fair and equitable treatment’ is common in international investment agreements, while WTO agreements demand the ‘reasonable and impartial administration of measures’. This paper compares approaches in international investment and trade law to three aspects of good governance: procedural fairness, transparency, and reasonable administration of measures. Despite textual differences, the standards adopted by these two regimes are remarkably similar. Consequently, decisions from these two branches of international economic law may provide states, tribunals, market participants and scholars with valuable insights into the conduct required by good governance obligations.

Several States have terminated international investment agreements (IIAs) in recent years—some alarmed at unexpected outcomes in certain investor–State cases, and others simply updating their IIAs as they conclude wider economic partnership agreements. States' attempts to extinguish investor rights through the consensual termination of an IIA raise complex legal issues. As a threshold matter, investors are capable of deriving legal 'rights' under an IIA that may interfere with attempts at termination. However, the grant of such rights under an IIA depends on its specific wording and context. Moreover, although a pre-existing treaty breach for which a formal claim has already been brought cannot be affected by a subsequent termination, States parties to an IIA are free to agree to extinguish investor rights that have not yet been exercised, even with respect to a pre-existing breach. In terminating an IIA on the basis of mutual agreement States parties also have (and have been shown to exercise) the power to override so-called 'survival' clauses commonly found in IIAs, thereby excluding all future rights and claims under the treaty. This conclusion is based on fundamental precepts of the law of treaties and is unaffected by any alleged doctrine of 'acquired rights'.

Australia's freedom of information (FOI) regime was amended in 2010 to embody a pro-disclosure culture within government, attempting to balance improved accessibility to government information with protecting agencies from abusive and unreasonable FOI requests. Through a case study of the tobacco industry's use of FOI requests, this article examines whether that balance has been properly struck. The article examines the operation of Australia's FOI regime, its use by tobacco companies, the adequacy of current FOI protections to allow agencies to deal with unreasonable requests, and potential amendments to remedy deficiencies in Australia's FOI regime, including pursuant to the recent Hawke Review. The article suggests that further reform is needed to discourage unnecessary and vexatious FOI requests and prevent wasteful use of agency time and resources. In particular, the article recommends the institution of a tiered charging regime, whereby small to moderate requests would be free or at low cost, and larger requests would be subject to more onerous charges that better reflect the requests' cost to government.

Host states not infrequently find themselves responding to claims by investors under international investment agreements (IIAs) following a series of corporate steps to enable the claim to take place: restructuring of existing chains of corporate ownership; transfers of assets to new or existing entities; or changes in corporate nationality. These corporate manoeuvres can create legal difficulties for investor claimants in both procedural and substantive terms. If the actions precede the claim but post-date the underlying ‘dispute’, the investor may be unable to enjoy the protection of the relevant IIA. If the actions indicate that the investment is not in fact owned or controlled by the claimant, treaty protection may be similarly barred based on the definition of investment or investor or the inclusion of a ‘denial of benefits’ clause. Finally, at least the most egregious forms of corporate manoeuvring may constitute an ‘abuse of rights’, in view of an ongoing or foreseeable dispute with the host State, again excluding the investor from protection under the relevant IIA. The incoherent manner in which tribunals have resolved these questions makes their resolution unpredictable, including in the Philip Morris v Asia case currently underway under the Hong Kong–Australia Bilateral Investment Treaty. Less formalistic responses and a willingness to recognize a doctrine of abuse of rights could assist in increasing consistency in this important area of international investment law.

As evidence of tobacco’s devastating effect on human health has grown in recent decades, States’ regulatory efforts to restrict tobacco use have correspondingly increased. A key international response to the globalisation of the tobacco epidemic has been the World Health Organization’s Framework Convention on Tobacco Control (‘WHO FCTC’), which opened for signature in 2003 and entered into force in 2005.The WHO FCTC has also influenced the development of domestic tobacco policy, such as Australia’s recent passage of the Tobacco Plain Packaging Act 2011(Cth), and public consultations towards similar mandatory plain packaging schemes in the United Kingdom and New Zealand. At the same time, a perception of tension has arisen between heightened public health regulation in the tobacco sector and States’ obligations under international trade and investment agreements.This tension lies very much at the heart of a series of recent and ongoing domestic and international disputes concerning tobacco products. This TDM Special Issue offers a timely look at these issues in the lead up to the Fifth Session of the Conference of the Parties to the WHO FCTC, to be held from 12 to 17 November 2012 in Seoul (‘COP5’). The contributors to the Special Issue discuss a range of disputes and negotiations concerning tobacco control regulation, offering insights into the legal questions at issue, their political ramifications, and their future resolution.The contributions address the broad themes of trade and investment in tobacco, the WHO and the WHO FCTC, plain tobacco packaging, and flavoured cigarettes, as explained below.

Twelve-country negotiations towards the Trans-Pacific Partnership Agreement ('TPP') are drawing to a close. The treaty has an ambitious agenda and could radically reshape trade in the Asia-Pacific region. At the same time, the TPP obligations have the potential to significantly restrict the ability of governments to regulate in the interests of public health. This article examines the impact that the TPP could have on two areas of public health regulation — tobacco control and access to medicines. It concludes that a number of legitimate concerns arise from the known content of the TPP, that the inclusion of a general health exception would be the preferable means of safeguarding the regulatory space of governments in relation to public health, and that United States proposals for stronger intellectual property protections that could restrict affordable access to medicines should be resisted. With negotiations shrouded in secrecy, TPP parties' desires to promote international trade and investment must not overshadow the need of governments to be able to implement sensible and effective public health policy.

The Agreement on Technical Barriers to Trade ('TBT Agreement') of the World Trade Organization (WTO) regulates the requirements that WTO Members may impose on product labels and other 'technical regulations'. Requirements that discriminate against or between imported products are particularly problematic, while non-discriminatory requirements are more likely to be found consistent with the TBT Agreement. Three cases decided by the WTO Appellate Body in 2012 shed light on the meaning and application of Articles 2.1 and 2.2 of that agreement. A case study of product labelling for health reasons (tobacco, alcohol and nutrition) provides further context for understanding the significance of the TBT Agreement for Members' pursuit of non-trade objectives in connection with product labels.

In this chapter, we explain and evaluate the AUSFTA primarily from an Australian perspective, given that most countries will be in a more or less analogous position to Australia when negotiating an FTA with the US. AUSFTA provides an illustration of the outcomes that countries with relatively little bargaining and economic power can expect from such an FTA. It also serves as a warning of how even an economically successful developed country may end up sacrificing its welfare, public policies and democratic processes in a dogged pursuit to cement relations with the US, in a manner that would be unlikely in the vigorous negotiating environment of the WTO. We begin by examining the way in which the AUSFTA was negotiated, before turning to some of the substantive outcomes of those negotiations in key areas such as goods, services, investment and intellectual property. Finally, we consider the impact of the AUSFTA to date and its future implications.

Over the past two years a small body of literature has built up in the United States in relation to the future of the traditional law review in the age of the internet and technological change. A paper by Bernard Hibbitts, entitled "Last Writes? Re-assessing the Law Review in the Age of Cyberspace" was instrumental in provoking this discussion. Hibbitts's main thesis is that the dominant form of the North American law review not only should, but is destined to give way in the next decade to a new era of electronic self-publishing. This article considers the traditional justifications for law reviews, and contrasts this with the view presented by Hibbitts. The way in which law reviews generally operate in Australia is then distinguished from those in North America, followed by an evaluation of the different approaches that can be used in relation to the composition of the editorial board and the processes for selecting and editing articles. Finally, the impact of the internet and new computer technologies on law reviews in Australia is examined.

In the past fifty years, the High Court of Australia has scrutinised the constitutional validity of military service tribunals on several occasions. Each time, the validity of service tribunals to conduct trials and impose punishment in relation to the particular offence has been upheld on the basis that it derives from a proper exercise by the legislature of its power under s 51(vi) of the Constitution. On no occasion has this been considered by the Court as a whole to involve a breach of the separation of powers doctrine. However, while it is generally accepted that service tribunals exercise what would ordinarily be seen as falling within the definition of "judiciary power", there has been no unifying and satisfactory explanation as to why this does not breach the separation of powers doctrine. In addition, no clear majority position has emerged as to the limits of the functions of service tribunals or the criteria for determining which offences can be properly dealt with by service tribunals without usurping the role of the courts. In particular, there is no consensus as to whether it is acceptable for defence legislation to provide simply that all civil offences in a particular jurisdiction automatically constitute disciplinary offences for defence purposes which therefore fall within the realm of service tribunals.

Since the latest relevant High Court case, the composition of the High Court has changed dramatically. Only two of the present Justices, Gaudron and McHugh JJ, have delivered judgments on this issue in that Court, and on those occasions both Justices indicated that they disagreed with the reasoning of the majority in the prevailing authorities. If this issue came before the HIgh Court today, it is unclear how the other Justices would decide. However, it is quite possible that a majority of the Court would choose not to follow those authorities. In addition, the separation of powers doctrine has enjoyed a reemergence of sorts in recent years, exemplified by cases such as Brandy v. Human Rights and Equal Opportunity Commission. Finally, the Commonwealth Parliament Joint Standing Committee on Foreign Affairs, Defence and Trade very recently completed its inquiry into military justice in Australia. These circumstances present an appropriate opportunity to reassess the state of the law regarding military service tribunals in Australia, in anticipation of a more certain and defensible position being reached by the High Court in the near future.

This article examines from a legal perspective how the current Australian approach to offences allegedly committed by defence force members could be modified to enhance fairness and legitimacy, without losing sight of the objectives and constraints of military operations. We begin by providing an overview of legal and practical features of the current system of military justice under the DFDA. We then assess the constitutional validity of military service tribunals under the DFDA, recalling not only the requirements set out in the Australian Constitution but also the rationale for these requirements as relevant to military service tribunals. We pay particular attention to the High Court's most recent pronouncements on this issue, in Re Colonel Aird; Ex parte Alpert. Our analysis leads to a new framework for determining which offences a service tribunal that is not a Chapter III court should be entitled to try. We then review and evaluate the recommendations of the Senate Committee regarding military discipline in its report on "The effectiveness of Australia's military justice system," pointing out areas of correlation with our own proposed framework. Our analysis demonstrates how Re Aird may be reconciled with the Senate Report and how the Constitution ensures both justice and effectiveness in the Australian Defence Force ("ADF").

This chapter examines the prominent role that Australia has played in the multilateral trading system, with a specific focus on the WTO and Australia’s preferential trade agreements (PTAs). Australia has been actively involved in the WTO, through GATT and WTO negotiations, WTO committee work, WTO disputes, and WTO review of Australian trade law and policy. In WTO negotiations, Australia is a respected and active player, and has even led the way in certain areas. Australia has also been involved in a significant number of WTO disputes covering a broad range of matters, and in this context it has contributed to the development of WTO law and practice. Like many other countries, Australia has vigorously pursued the conclusion of PTAs with a range of trading partners, particularly in recent years. This has created tensions between Australia’s approach to international trade law and its interaction with domestic regulation.

In this chapter, we examine three significant areas in which public international law interacts with Preferential Trade Agreements (PTAs): first, how various forms of public international law affect the interpretation of PTA provisions; second, the related issue of how PTAs contribute to customary international law and the extent to which customary international law applies to PTAs; and finally, how to resolve conflicts between PTAs and other treaties. This final section examines both substantive conflicts and problems arising from overlapping jurisdictions of PTA tribunals and other international tribunals. This survey illustrates the complex web of links between PTAs and public international law and the readiness of PTA tribunals, particularly under the North American Free Trade Agreement (NAFTA), to draw on other sources of international law in interpreting PTA provisions and otherwise determining PTA disputes. At the same time, no clear answers emerge about how to best deal with the likelihood of ever increasing conflicts between PTAs and other treaties.

This chapter assesses the role of good faith in managing parallel investment and trade disputes. It considers the jurisdictional and substantive overlap in trade and investment regimes that give rise to parallel disputes, and the normative considerations such as double remedies and conflicting outcomes that inform why parallel disputes may need to be proactively managed by adjudicatory bodies in certain circumstances. The principle of good faith has provided the conceptual framework for the development of a number of legal tools to manage parallel disputes including lis pendens, estoppel, and abuse of rights, and this chapter evaluates the extent to which they may be deployed in trade and investment regimes. While finding that these tools are available to varying degrees within both trade and investment regimes, this chapter also identifies a margin of uncertainty in their scope and application and concludes that they are insufficient to manage disputes that originate across the two regimes.

This volume weaves its way through a number of intersecting fields: chief among them public international law, international investment law, and international trade law. The focus of the analysis is on international investment law, and in particular the significance of the principle of good faith in identifying a protected investment or protected investor, the nationality of a given entity, the jurisdiction of an investment tribunal in resolving a given dispute, and compliance with the fair and equitable treatment standard. Yet the role of good faith in the context of international investment law can be fully understood only having regard to other legal issues, including: the sources of international law; the interpretation of treaties; the law of treaties, in terms of their creation, modification and termination; and the relationship between overlapping disputes in different national, regional and international fora. Accordingly, the volume brings together authors with varied and complementary expertise to tackle good faith from these various angles.

Intellectual property is routinely regulated by international investment agreements (‘IIAs’) as a protected class of investment. However, it has only emerged as a subject of investment claims in recent years and in relatively few niche cases, and as such the relationship between intellectual property and international investment law remains largely unexplored. This chapter sheds light on that relationship, revealing both uncertainty and fragmentation, as well as deliberate attempts at constructively integrating intellectual property regulation and international investment law. It primarily examines three substantive investment obligations in connection with intellectual property: most-favoured-nation obligations, expropriation, and so-called ‘umbrella clauses’. Through this analysis, complex and unsettled questions are discussed, such as the role of municipal law in determining the contours of intellectual property rights protected by IIAs, and the ability of umbrella clauses to de facto incorporate intellectual property obligations into IIAs from other treaties. By applying the analysis to the most significant ongoing investment claim relating to intellectual property — the Philip Morris plain-packaging dispute — this chapter demonstrates the practical significance of bringing clarity and enhanced certainty to the relationship between IIAs and intellectual property.

This chapter contains a legal analysis of the meaning and potential scope of GATS Article VI:1 , taking account of relevant case law and the underlying purpose of the provision. We begin by providing an overview of Article VI: 1 and explaining its general relationship to GATT Article X:3(a) and to the pronouncements of panels and the Appellate Body on the latter provision. We then identify the boundaries of GATS Article Vl:l by considering its textual limitations to particular service sectors (those in which specific commitments are undertaken), particular measures (those of general application affecting trade in services), and particular conduct in relation to those measures (their administration). Finally, we consider the core concepts of reasonableness and impartiality at the heart of both GATS Article Vl:l and GATT Article X:3(a), in view of the limited case law to date, characterizing them as due process provisions that potentially incorporate both procedural and substantive protections. We conclude that the breadth and strength of GATS Article VI:l as a discipline on domestic regulatory conduct is yet to be fully realized.

Tobacco regulation forms a key part of responding to an acknowledged global epidemic. As tobacco regulation has intensified around the world, tobacco companies have used increasingly bold domestic and international legal challenges to defeat or delay stronger regulation. This volume offers a range of perspectives on these various legal challenges, exploring first the twin areas of international law that impact significantly on this field – international health law, and international trade and investment law – and then the different jurisdictional backgrounds in which tobacco regulation operates. Part I of the book introduces the World Health Organization (WHO) in the context of tobacco control, including the key instruments of the WHO Framework Convention on Tobacco Control (WHO FCTC) and the recently concluded Protocol to Eliminate Illicit Trade in Tobacco Products.6 Part II addresses the implications for tobacco control of international trade law and international investment law, including under the World Trade Organization (WTO), and bilateral and regional agreements for the liberalisation of trade and investment. In Part III, the book showcases the current state of regulating tobacco in several countries and regions around the world. While not every continent could be represented, each chapter provides insights into the kinds of legal and political battles being faced locally in the pursuit of tobacco regulation. Some areas face similar challenges, while others present unique circumstances.

Trade liberalisation has the potential to increase certain unhealthy habits such as smoking and over-consumption of alcohol and unhealthy foods, leading to a corresponding increase in non-communicable diseases (‘NCDs’). A range of measures designed to reduce consumption of these products may implicate international trade rules. For example, NCD risk factors may be addressed through: product bans; packaging and labelling requirements; import tariffs; sales taxes; subsidies; licences; restrictions on advertising, promotion or sponsorship; regulation of product content through disclosure or restriction of ingredients; restrictions on ages of sale or purchase; exclusion areas (eg no smoking or no alcohol areas); and education. To a greater or lesser degree, each of these measures could potentially infringe international trade rules and therefore needs to be crafted with those rules in mind. A key aim of this chapter is therefore to provide insights for public health officials and policy-makers in countries around the world on how regulation of NCD risk factors can be optimised to accord with the requirements of international trade law without compromising public health objectives. Despite some problematic examples of recent clashes between international trade law and NCD risk factor regulation (particularly in connection with tobacco), we firmly believe as international trade law scholars that international trade law need not impede sound health policy.

This chapter uses the Hong Kong-Australia BIT as a case study to illustrate how plain packaging measures are likely to fare in international investment law. It examines in detail the investment claim made by Philip Morris Asia Limited ('PMA') against Australia under the BIT, including matters associated with the jurisdiction of an established arbitral tribunal, the relevance of potential local remedies and the nature of PMA's investment in Australia. In assessing Australia's options in light of the PMA claim, it is concluded that PMA likely has a relevant investment to found jurisdiction in a claim under the BIT, and that Australia would have difficulty extinguishing such a claim. In light of this, Australia may wish to consider modification of some of its BITs to clarify that the parties never intended public health measures to be caught by investor-State claims. It is further argued that the only breach of the Hong Kong-Australia BIT that PMA might be able to make out relates to expropriation, which is countered by evidence collected by the Australian government concerning the health effects of plain packaging. In the event of an adverse award against Australia, PMA may face enforcement difficulties for reasons of public policy and sovereign immunity.

Patent protection for pharmaceutical products as mandated in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of the World Trade Organization (WTO) represents a potentially signicant obstacle to public health measures, particularly for developing countries seeking to import medicines to deal with serious public health concerns, such as the HIV/AIDS crisis. Since 2001, WTO members have acknowledged this tension while working slowly towards a formal amendment of WTO rules that would facilitate compulsory licensing of pharmaceuticals for the benefit of least-developed country (LDC) members, as well as other members lacking sufficient manufacturing capacity to use the existing flexibilities in the TRIPS Agreement in respect of public health. As the first shipment of drugs from Canada to Rwanda under the new arrangements has recently taken place (in September 2008), we take opportunity to reflect on the steps taken to date within the WTO to resolve the patent/public health tension.

In section 2, we explain why WTO members needed to reform the TRIPS Agreement in order to improve access to medicines for public health reasons, before turning in section 3 to the temporary solution reached in the form of a waiver of certain TRIPS obligations. In section 4 we then consider the more permanent solution of a formal amendment that is envisaged for the future. This chapter then turns in section 5 to consider how the waiver remains underutilized, suggesting that members need to re-evaluate their commitment to affordable medicines and test the workability of the waiver before making it permanent. Finally, in section 6 we examine the additional limited exceptions to patent protection granted in the waiver for bilateral free trade agreements and regional patent systems. However, we conclude that the potential of this use of the waiver is also not being realized.

The Australian federal government recently released an exposure draft of legislation to introduce a scheme for the mandatory ‘plain packaging’ of cigarettes and other tobacco products from 2012. The scheme will prohibit the use of brand logos, graphics and colors on tobacco products and packaging manufactured or sold in Australia or imported into Australia. All packages will be the same dark olive brown color, largely taken up by graphic and textual health warnings, with brand names appearing in the same font and limited size. As Australia is set to become the first country in the world to implement such a scheme, its outcome will establish a critical precedent for both tobacco control interests and tobacco companies. Unsurprisingly, the scheme is already coming under attack through extensive advertising campaigns funded by tobacco companies and allegations of domestic and international legal violations, some of which have reached the level of formal complaints in bilateral and multilateral fora. This chapter critically analyses claims that plain packaging as envisaged by Australia would breach various agreements of the World Trade Organization. We explain in particular why the scheme is consistent with the TRIPS Agreement, the TBT Agreement, and the GATT 1994, and not covered by the SPS Agreement.

In this chapter, we examine three significant areas in which public international law interacts with Preferential Trade Agreements (PTAs): first, how various forms of public international law affect the interpretation of PTA provisions; second, the related issue of how PTAs contribute to customary international law and the extent to which customary international law applies to PTAs; and finally, how to resolve conflicts between PTAs and other treaties. This final section examines both substantive conflicts and problems arising from overlapping jurisdictions of PTA tribunals and other international tribunals. This survey illustrates the complex web of links between PTAs and public international law and the readiness of PTA tribunals, particularly under the North American Free Trade Agreement (NAFTA), to draw on other sources of international law in interpreting PTA provisions and otherwise determining PTA disputes. At the same time, no clear answers emerge about how to best deal with the likelihood of ever increasing conflicts between PTAs and other treaties.

TRIPS raises an array of complex questions and its implications for development, trade, and competition are dij cult to identify in the abstract. On the one hand, it risks favouring IP owners, traditionally residing in developed countries, at the expense of vigorous competition and open trade. On the other hand, as the scope of IP expands (for example in the context of GIs), it offers potential beneC ts to at least some developing countries. In addition, it provides developing country Members with the possibility of cross-retaliation as an effective means of inducing compliance of other Members with their WTO obligations following adverse rulings in WTO dispute settlement. J e Members’ ultimate response to the public health problems of developing countries (especially those with limited pharmaceutical manufacturing capacity) is also a significant achievement, although this would be best consolidated through the passing of the formal amendment to TRIPS and the use of the available flexibilities in practice.

Moving beyond the first decade of TRIPS, and even beyond Doha, WTO Members may need to reinvigorate discussions on areas of disagreement such as non-violation complaints, exhaustion, and anti-competitive practices. At the same time, they must recognize that TRIPS is not operating in a vacuum. Especially in the absence of progress under TRIPS from the perspective of all Members, IP laws including those relevant to international trade will continue to advance outside the WTO. This is already evident in the work of WIPO and several FTAs, most o[ en in the direction of strengthening IP rights, which may upset the balance achieved in TRIPS (if indeed it is regarded as having struck an appropriate balance to begin with). On the opposite side, UN calls for greater appreciation of human rights in TRIPS and its application should remind Members of the need to consider the wider ramifications of stronger IP protection in the longer term. While many debated the propriety of including TRIPS in the WTO to begin with, it need not be a one-sided document in future.

In the past fifty years, the High Court of Australia has scrutinised the constitutional validity of military service tribunals on several occasions. Each time, the validity of service tribunals to conduct trials and impose punishment in relation to the particular offence has been upheld on the basis that it derives from a proper exercise by the legislature of its power under s 51(vi) of the Constitution. On no occasion has this been considered by the Court as a whole to involve a breach of the separation of powers doctrine. However, while it is generally accepted that service tribunals exercise what would ordinarily be seen as falling within the definition of "judiciary power", there has been no unifying and satisfactory explanation as to why this does not breach the separation of powers doctrine. In addition, no clear majority position has emerged as to the limits of the functions of service tribunals or the criteria for determining which offences can be properly dealt with by service tribunals without usurping the role of the courts. In particular, there is no consensus as to whether it is acceptable for defence legislation to provide simply that all civil offences in a particular jurisdiction automatically constitute disciplinary offences for defence purposes which therefore fall within the realm of service tribunals.

Since the latest relevant High Court case, the composition of the High Court has changed dramatically. Only two of the present Justices, Gaudron and McHugh JJ, have delivered judgments on this issue in that Court, and on those occasions both Justices indicated that they disagreed with the reasoning of the majority in the prevailing authorities. If this issue came before the HIgh Court today, it is unclear how the other Justices would decide. However, it is quite possible that a majority of the Court would choose not to follow those authorities. In addition, the separation of powers doctrine has enjoyed a reemergence of sorts in recent years, exemplified by cases such as Brandy v. Human Rights and Equal Opportunity Commission. Finally, the Commonwealth Parliament Joint Standing Committee on Foreign Affairs, Defence and Trade very recently completed its inquiry into military justice in Australia. These circumstances present an appropriate opportunity to reassess the state of the law regarding military service tribunals in Australia, in anticipation of a more certain and defensible position being reached by the High Court in the near future.

Good faith is a doctrine that is readily accepted in legal systems. Yet, its distinct meaning has always been elusive. Ideas such as justice and equity are omnipresent in the law. Good faith is counted among such ideas. Their function has been to provide a corrective approach in situations where the strict application of the law has unacceptable results. They are also used to support a decision-maker’s conclusions on difficult issues where other solutions are equally possible. In these situations, good faith and similar ideas become rationalizations for the results arrived at. Defined or explained in this way, their existence in the law may be desirable. But put differently, these nebulous doctrines exist in the law to aid in finding subjective solutions to difficult issues, which may come to be justified through the use of such lofty notions. The latter conclusion immediately invites the criticism that the doctrine of good faith is capable of manipulation in order to justify a variety of inconsistent results. Critics argue that the subjectivity inherent in these concepts makes their use of doubtful significance. They have such a variable meaning that they could be used to support a variety of conclusions and befuddle the law in its search for certainty. Having in itself no power to lead to conclusions, the purpose of a concept such as good faith may be misguided: that of justifying conflicting solutions to difficult problems. This book demonstrates the range of scholarly views applicable to good faith in international investment law and the questions that remain to be answered.

Chapters relating to regulatory coherence or cooperation are becoming significant features in new preferential trade agreements, including the Trans-Pacific Partnership (TPP). While the existing literature has considered in detail the potential for harmonisation of standards or institutional cooperation and its impact on the regulatory autonomy of treaty parties, this chapter focuses on those elements of regulatory coherence that relate to domestic processes for the development of regulations. It examines whether the adoption of ‘good regulatory practices’ in accordance with the TPP will help to ensure that measures states enact to protect non-economic interests (such as the environment or public health) are consistent with other key obligations of international trade and investment law. Although many elements of good regulatory practice mirror the criteria used to distinguish legitimate regulatory measures from disguised protectionism, there is no guarantee that a tribunal will come to the same conclusions as those reached during a domestic regulatory impact assessment.

Chapters relating to regulatory coherence or cooperation are becoming significant features in new preferential trade agreements, including the Trans-Pacific Partnership (TPP). While the existing literature has considered in detail the potential for harmonisation of standards or institutional cooperation and its impact on the regulatory autonomy of treaty parties, this chapter focuses on those elements of regulatory coherence that relate to domestic processes for the development of regulations. It examines whether the adoption of ‘good regulatory practices’ in accordance with the TPP will help to ensure that measures states enact to protect non-economic interests (such as the environment or public health) are consistent with other key obligations of international trade and investment law. Although many elements of good regulatory practice mirror the criteria used to distinguish legitimate regulatory measures from disguised protectionism, there is no guarantee that a tribunal will come to the same conclusions as those reached during a domestic regulatory impact assessment.

Chapters relating to regulatory coherence or cooperation are becoming significant features in new preferential trade agreements, including the Trans-Pacific Partnership (TPP). While the existing literature has considered in detail the potential for harmonisation of standards or institutional cooperation and its impact on the regulatory autonomy of treaty parties, this chapter focuses on those elements of regulatory coherence that relate to domestic processes for the development of regulations. It examines whether the adoption of ‘good regulatory practices’ in accordance with the TPP will help to ensure that measures states enact to protect non-economic interests (such as the environment or public health) are consistent with other key obligations of international trade and investment law. Although many elements of good regulatory practice mirror the criteria used to distinguish legitimate regulatory measures from disguised protectionism, there is no guarantee that a tribunal will come to the same conclusions as those reached during a domestic regulatory impact assessment.