Investor-State Dispute Settlement (ISDS) clauses are a prominent feature of many modern International Investment Agreements (IIAs). They are included in nearly all the IIAs to which Australia is a party. Typically, an ISDS clause allows a foreign investor (often a corporation) to challenge a government decision before a panel of private arbitrators who have the power to make decisions and make awards that are binding and enforceable.
Tag: international trade and finance
Interview with Professor Gillian Triggs: A Truly International Lawyer
For our fourth profile of Women in International Law Month, Editor-in-Chief Jennifer Tridgell sat down with the President of the Australian Human Rights Commission (AHRC), Professor Gillian Triggs. She is a highly accomplished international lawyer and academic, with experience on matters from commercial law to Indigenous rights.
Professor Triggs is the incumbent President of the Australian Human Rights Commission. Previously, she was Dean of the Faculty of Law at the University of Sydney and Director of the British Institute of International and Comparative Law. Gillian has been a consultant on International Law to King & Wood Mallesons, the Australian representative on the Council of Jurists for the Asia Pacific Forum for National Human Rights Institutions, Chair of the Board of the Australian International Health Institute and a member of the Attorney General’s International Legal Service Advisory Council. She is the author of many publications on international law, including “International Law: Contemporary Principles and Practices” (Second Edition, 2011).
Event Summary – The Impact of Donald Trump on International Law
On 8 February 2017, President Chris Ward of the ILA (Australian Branch) joined an esteemed panel of speakers for an event hosted by the NSW Bar Association. The topic was the impact of Donald Trump on international law, whether in present or future.
2016 – Year in Review
The past year has been incredibly tumultuous, having reset the international stage and delivering incredibly unexpected political outcomes. From an international legal perspective, while events such as Brexit, Donald Trump’s election, and the crisis in Syria have undoubtedly raised important legal questions and will likely change international law in the future, there have been numerous other significant developments.
UK-Australia Trade and Investment Relations Following Brexit – Reyna Ge
The referendum held in the United Kingdom (‘UK’) on 23 June 2016, in which Britain elected to leave the European Union (‘EU’), led to an earthquake response. The pound slumped to decade lows against the US dollar, the yield on UK bonds feel to record lows, and the Financial Times Stock Exchange 100 share index sank. Not only were the UK markets hit, but the Eurozone also felt the shockwaves, experiencing dropping share prices and market volatility.
It is likely that the aftershocks will be numerous and unpredictable. Much will depend on the relationship that the UK and EU are able to negotiate in the coming years, particularly with regard to the UK’s future access to the EU Single Market. However, this is subject to great uncertainty, as trade negotiations will take place in an environment of political and economic flux due to upcoming elections in a number of key European governments, such as Germany and France. Such changes will likely play a key role in the outcome of Brexit negotiations.
Other than UK’s negotiations with the EU concerning their future relationship, high on the UK’s agenda is its future trade and investment relationships with extra-EU countries. Concerning this, UK Prime Minister, Theresa May, and Australian Prime Minister, Malcolm Turnbull, have already flagged their interest in negotiating – and indeed, fast-tracking – a UK-Australia trade agreement. This article examines the legal framework and issues underlying future trade negotiations and the likely implications for Australia.
UK’s current position on trade and investment matters
As a Member State of the EU, the UK is subject to two main trade and investment restrictions arising from the EU’s exclusive competence over commercial policy matters pursuant to Article 207 of the Treaty on the Functioning of the European Union (‘TFEU’). First, its ‘intra-EU bilateral investment treaties’ (‘intra-EU BITs’), which are trade agreements between the UK and current EU Member States, were to be phased out of operation. It had been argued for some time that intra-EU BITs could be incompatible with EU law.
Second, given Article 207 of the TFEU, extra-EU relationships are exclusively within the competence of the EU, as reflected by the process of negotiations followed for the Transatlantic Trade and Investment Partnership (‘TTIP’) and the recently concluded Comprehensive Economic Trade Agreement (‘CETA’). For the UK’s trade agreements that were concluded before 1 December 2009, the Regulation (EU) 1219/2012 of the European Parliament and the Council of 12 December 2012 establishes transitional arrangements.
Future treaties concerning trade and investment matters
The second restriction raised above poses significant ramifications for the UK concerning recently negotiated treaties and future treaties pertaining trade and investment.
Regarding recently negotiated treaties such as CETA, it is likely that these treaties would apply provisionally to the UK so long as the UK remains a Member State of the EU (Burgstaller and Zarowna, Possible Ramifications of the UK’s EU Referendum on Intra- and Extra-EU BITs (October 2016), p 572). However, the part that the UK would be able to play in current negotiations for deals such as TTIP is ambiguous.
As for negotiations with extra-EU countries, while the UK has expressed great interest in commencing trade talks with countries such as Australia and USA as soon as possible, Article 207 of the TFEU presents a significant fetter. As highlighted by Burgstaller and Zarowna (p 573), it is unlikely that the UK can commence negotiations with States with which the EU has already completed investment agreements, or are currently negotiating an investment agreement. This position has been recently flagged by Australia’s Minister for Trade, Tourism and Investment, Steven Ciobo, who ruled out negotiating a trade agreement with the UK government until the UK’s departure from the EU has been formally completed (Payne, Australia Has Just Dealt a Massive Blow to the UK Government’s Brexit Plans (25 October 2016)). Ciobo made the statement on the basis that he had received advice telling him that entering formal talks before the completion of Brexit would be illegal.
UK-Australia Relations: Future Challenges and Opportunities
Given that the UK is an important trade and investment partner of Australia, a future trade and investment agreement is well on the cards. According to statements released by May’s government, the aim was – prior to the roadblock identified by Ciobo – to draft a UK-Australia deal for signature by 2019 (Khan, Australia Rules Out Starting Trade Negotiations (26 October 2016)). This would likely increase the trade between the two countries, which is already substantial with Australian government trade figures indicating that in 2014, Australia exported A$8.3bn to the UK and imported A$12.4bn. Further, the UK is the third largest source of foreign direct investment in Australia, and the second most popular destination for Australian foreign direct investment flows abroad (Austrade Economics, Beyond Brexit: Potential Implications for Australian Trade and Investment (July 2016), p 17).
However, despite the valuable opportunity that Australia has to strengthen ties and the positive attitudes that both governments have voiced to a potential agreement, the Australian government will need to be keenly monitoring and responsive to the continued uncertainty and shifting goal posts that the UK faces. These include:
- uncertainty concerning the relationship that the UK and the EU would adopt, and most relevantly the level of access that the UK would have to the EU’s Single Market;
- continued challenge and uncertainty over the operation of Article 50 of the Treaty on the European Union (‘TEU’), which designates the process for a Member State to leave the EU, and thus severe lack of clarity as to when the UK would formally commence Brexit negotiations, let alone finish these negotiations; and
- political challenges relating to striking trade deals in the EU, as reflected in the recent issues with the finalisation of the CETA negotiations.
Though, as identified by Austrade Economics, Australia is not considered to be one of the economies most exposed to Brexit fallout, it would be prudent of Australia to keep abreast of these developments, if only to know how best to forge a future relationship with both the UK and the EU.
Does ISDS Promote FDI? Asia-Pacific Insights from and for Australia and India – Luke Nottage & Jaivir Singh
Treaty-based Investor-State Dispute Settlement (ISDS) keeps attracting media attention. An example is a social media campaign by the ‘GetUp!’ group, which aims generally ‘to build a progressive Australia and bring participation back into our democracy’, objecting to ratification of the Trans-Pacific Partnership (TPP). This free trade agreement (FTA), signed in February 2016, encompasses Australia and 11 other Asia-Pacific economies generating around 40% of world GDP. Whether and how the TPP will be ratified and come into force has become very uncertain anyway, after the unexpected victory of Donald Trump in US presidential elections. Although Trump seems already to be backtracking on some of his pre-election positions, he had been opposed to the US ratifying the TPP and indeed favoured renegotiation of the longstanding North American FTA with Canada and Mexico. Both FTAs include the option of ISDS, allowing foreign investors to bring direct claims against host states for violating substantive commitments such as non-discrimination or adequate compensation for expropriation.
Nonetheless, taking advantage of the extra uncertainty now surrounding the TPP, China is already trying to get Australia’s support to progress negotiations for a broader FTA, establishing a “Free Trade Area of the Asia-Pacific” (FTAAP). China had been pressing for a FTAAP as it had not been included in TPP negotiations. After the TPP was signed, China had also tried to accelerate negotiations for the Regional Comprehensive Economic Partnership (RCEP or ASEAN+6) FTA, underway since late 2012 and involving ten Southeast Asian states along with China, Japan, Korea, India, Australia and New Zealand. Ministerial statements and a leaked draft Investment Chapter indicate that ISDS provisions remain on the negotiating agenda for RCEP (Kawharu, Amokura and Nottage, Luke R., Models for Investment Treaties in the Asian Region: An Underview, 2016).
Public opposition to ISDS therefore remains an important issue, particularly in the Asia-Pacific region. Legal professionals need to engage with this debate and understand the pros and cons of this dispute resolution procedure, especially the investor-state arbitration mechanism. On the one hand, the GetUp! Campaign against the TPP had focused on the risk of Australia being subject to ISDS claims especially from US investors, in light of their claims against Canada under the North American FTA. Yet damages awarded by arbitrators or through settlements amount to only 0.05% of US FDI in Canada, and the latter’s investors bring more ISDS claims per capita than US investors.
On the other hand, the GetUp! campaign did not adequately explain or consider why and how ISDS commitments are made. Host states have increasingly offered such protection to foreign investors in investment treaties since the 1970s. Bilateral investment treaties (BITs) proliferated especially as communist states began to open up their economies from the 1990s. Bilateral and regional FTAs, usually with investment chapters also containing ISDS protections, were concluded after the collapse of efforts to develop a multilateral investment agreement through the World Trade Organization (WTO) and Organisation for Economic Co-operation and Development (OECD).
The extra option of treaty-based ISDS was seen as a more direct and less politicized procedure compared to inter-state dispute settlement. The latter is still typically provided in investment treaties (but hardly ever used), as well as for trade disputes under the WTO (where, for example, Australia has only been complainant in seven cases – last in 2003). Credible commitments through ISDS-backed treaties were seen as particularly important for developing countries where domestic courts and legal protections did not meet international standards.
Yet ISDS has recently become a lightning rod for public opposition to FTAs (and economic globalization more generally), often after host states are subjected to their investment treaty claims (Nottage, Luke R., Rebalancing Investment Treaties and Investor-State Arbitration: Two Approaches,, 2016). For example, major debate emerged in India after Australia’s White Industries won a claim in 2011 under UNCITRAL Arbitration Rules as provided by the BIT with India (signed with Australia in 1999). The tribunal found that India had not satisfied the promised “effective means” for the investor to enforce a commercial arbitration award (against an Indian SOE). This and subsequent claims prompted the Indian government to finalise a revised (less pro-investor) Model BIT in December 2015 It is now being used in negotiating new BITs (eg that signed with Cambodia in 2016) and indeed when proposing to terminate older-generation treaties (including with Australia).
Similarly, Philip Morris Asia’s much larger claim initiated in 2011 under a BIT signed in 1993 with Hong Kong, for alleged expropriation of trademarks from Australia’s tobacco plain packaging legislation, led to escalating local media coverage – until the arbitral tribunal rejected jurisdiction in 2015 (Hepburn, Jarrod and Nottage, Luke R., Case Note: Philip Morris Asia v Australia, 2016). This cause celebre also became a factor behind the Gillard Government Trade Policy Statement announcing in 2011 a major shift for Australia: eschewing ISDS in new treaties, even with developing countries (Nottage, Luke R., The Rise and Possible Fall of Investor-State Arbitration in Asia: A Skeptic’s View of Australia’s ‘Gillard Government Trade Policy Statement’, 2011). This resulted in no significant FTAs being concluded, until a new Coalition Government gained power in late 2014 and reverted to including ISDS on a case-by-case assessment (Nottage, Luke R., Investor-State Arbitration Policy and Practice in Australia, 2016). The current Labor Opposition maintains its objections to ISDS, creating difficulties for Australia to ratify the TPP.
Australia’s temporary shift was partly due to politics: in 2011 the (centre-left) Gillard Labor Government was in coalition with the Greens, who are even more opposed to free trade and investment. But the stance also relied on arguments from some economists, even though they instead favour more free trade and foreign investment, albeit through unilateral or perhaps multilateral initiatives rather than bilateral or even regional FTAs. Developing the latter perspective , a majority report of the Productivity Commission in 2010 into Australia’s FTAs had argued against the common world-wide practice of offering foreign investors extra procedural rights such as ISDS. It did concede that such extra rights might be justified, for example if they led to greater cross-border flows in foreign direct investment (FDI). Yet the Commission pointed to a few studies suggesting that, on an aggregate (world-wide) basis, ISDS-backed treaty provisions had not significantly increased flows.
A recent econometric study by Luke Nottage (a co-author of this posting) with Shiro Armstrong casts doubt on that observation (Armstrong, Shiro Patrick and Nottage, Luke R., The Impact of Investment Treaties and ISDS Provisions on Foreign Direct Investment: A Baseline Econometric Analysis, 2016. After an extensive review of existing empirical research and associated methodological issues, their study instead found positive and significant impacts from ISDS provisions on FDI outflows from OECD countries over 1985-2014, using a Knowledge-Capital Model with a dynamic panel indicator (effectively addressing the problem of endogeneity in variables). This impact on FDI could be found from ISDS provisions on their own, especially when ISDS was included in treaties signed or promptly ratified with non-OECD or less developed countries. The econometric study by Armstrong and Nottage also found a positive and significant impact from ISDS provisions when combined with the Most-Favoured-Nation provision, which is a key and indicative substantive treaty commitment for foreign investors. (This aspect was tested because the “strength” of treaties can vary in terms of substantive commitments by host states: we might not expect much impact on FDI even from ISDS provisions if the substantive protections and liberalisation commitments are few.)
Counter-intuitively, however, the study found that in general FDI impact was even larger for weaker-form ISDS provisions. This could be due to investors historically having been impressed by a broader “signaling” effect from states concluding investment treaties. Yet the impact from ISDS provisions also seems to be diminishing since 2001, when ISDS claims started to pick up world-wide and therefore investors (or at least legal advisors) could have begun to pay more attention to the details of ISDS and other treaty provisions. Reduced impact since 2001 may be related to more efforts from host states to unilaterally liberalise and encourage FDI. However, it could also be due to a saturation effect (as treaties began to be concluded with less economically important partner states), or indeed due to less pro-investor provisions being incorporated into investment treaties (influenced by more recent US practice, partly in response to ISDS claims (Alschner, Wolfgang and Skougarevskiy, Dmitriy, Mapping the Universe of International Investment Agreements, 2016.
Further variables impacting on FDI (such as double-tax treaties) could be investigated, as can regional differences. Data limitations also remain, as there is now considerable FDI outflow from non-OECD countries. Nonetheless, this baseline study suggests that it has been and still may be risky to eschew ISDS provisions altogether. In particular, results indicate a strong positive effect on FDI flows from ratified investment treaties overall even from 2001. So states would have missed out on that if they had insisted on omitting ISDS, and this then became a deal-breaker for counterparty states.
Further econometric research underway at a Delhi-based thinktank suggests that India was correct not to abandon ISDS provisions altogether in its revised Model BIT (and to retreat from an even less pro-investor earlier draft of the Model BIT. While this study by Jaivir Singh (one of the co-authors of this posting) and his colleagues is still ongoing, preliminary results (using instead a gravity-type model) find that although the signing of individual BITs had an insignificant impact on FDI inflows into India, the cumulative effect of signing BITs is significant and so is the coefficient associated with the signing of FTAs. Since almost all of India’s investment treaties provide for full ISDS protections, these preliminary results suggest that ISDS can have a positive influence on foreign investment, albeit in a non-obvious compound manner.
Overall, these studies suggest that ISDS-backed treaty provisions liberalising and protecting FDI have had a significant impact, but in complex and evolving ways. Agreeing to dialed-back ISDS provisions and even substantive commitments (perhaps following recent EU preferences may be an acceptable way forward. This is true especially for Australia and India, as they continue negotiations bilaterally as well as through RCEP, and perhaps eventually for the FTAAP FTA.
Luke Nottage is Professor at University of Sydney Law School & Jaivir Singh is Associate Professor at Jawaharlal Nehru University, Delhi.
This post draws on Nottage’s joint project researching international investment dispute management, funded by the Australian Research Council (DP140102526, 2014-7); and Singh’s ongoing project assessing the impact of investment treaties on FDI in India, for the Indian Council for Research on International Economic Relations. Singh was a visitor at the University of Sydney in October 2016. The article was first published by the Asia-Pacific Forum for International Arbitration, and republished here with permission.
Lord Goldsmith talks to ACICA audience about Brexit and arbitration – Marina Kofman
On 24 October 2016, Lord Goldsmith addressed an ACICA audience in Sydney about Brexit and arbitration. He set the Brexit scene: Theresa May is still tight-lipped about the nature of Brexit, following a Brexit campaign characterised by a lack of clarity on what Brexit would actually mean. Uncertainty abounds, except for in one aspect: indications are that negotiations will not be easy. The EU has made it clear to the UK that there will be ‘no negotiation without notification.’
First things first – the constitutional challenge: May plans to trigger Article 50 of the Lisbon Treaty next year but does she have the authority to do that under the royal prerogative? This issue is being hotly debated and is currently being tried in the London Courts. On 3 November 2016, the High Court delivered judgment finding that Article 50 could not be invoked without an Act of Parliament. Arrangements are in place for an expedited appeal straight to the UK Supreme Court and that case will be heard by December. Consequences for the UK and EU will be massive. Much of that is only dimly seen right now.
Impact on London arbitration
The thesis of Lord Goldsmith’s talk was that Brexit will not lead to a diminution of the merits or popularity of London as a seat of arbitration, nor damage the popularity of English law as the commercial law of choice for many international transactions. Why is this the case?
At the centenary conference of the Chartered Institute of Arbitrators (CIArb) in London last year, the CIArb published a list of ten features necessary to make for a safe, effective and successful seat of arbitration. These features are: (1) a clear arbitration law; (2) an independent judiciary; (3) legal expertise; (4) education; (5) the right of choice in representation; (6) accessibility and safety of the seat; (7) facilities; (8) professional ethics that embrace diversity of traditions; (9) enforceability; and (10) arbitrator immunity. London meets all of these requirements, none of which depend on UK membership of the EU. There is, therefore, no reason to believe that London will diminish in popularity as a seat of arbitration. Lord Goldsmith opined that despite the growth of arbitration and arbitral institutions in Asia, Brexit will not spark a ‘land grab’ for traditionally London-based work by other arbitration centres.
Potential opportunities
In addition to the challenges presented by Brexit, there are certain opportunities. First, there may be a substantive disentanglement of English law and EU law. European law has coloured English law, so if EU regulations no longer apply then English common law may see a resurgence. Secondly, the determination of jurisdictional issues in court cases may end up vastly different should the UK go down the path of abandoning the Brussels Regulation regime and return to common law forum non conveniens principles. The current regime means a UK commercial court can be seized of a matter in circumstances where it is not necessarily the most appropriate forum, but then have limited ways to decline jurisdiction. Right now though, it is uncertain what will happen in terms of UK court judgments until we know more about how the UK will proceed in relation to its private international law framework with respect to the EU. This might push some users towards arbitration, which has a reliable enforcement regime under the New York Convention. Another advantage of Brexit might be that UK courts will again be able to issue anti-suit injunctions directed at European courts. UK courts once commonly issued anti-suit injunctions to prevent proceedings brought in breach of arbitration agreements. This was, however, put to an end in 2004 when the European Court of Justice held that the practice was incompatible with the Brussels Convention.
Thirdly, Brexit might influence the debate about investor-State dispute settlement (ISDS). The EU has proposed an ‘Investment Court System’, a permanent investment court with an appeals process for the Transatlantic Trade and Investment Partnership (TTIP). The competence for negotiating EU treaties currently rests with the EU, and the EU has been firm that the UK is not free to negotiate its own treaties whilst it remains in the EU. The question is, would being freed from the EU give the UK a negotiating advantage? Only time will tell.
In the meantime, it is plausible even if the USA agrees to the an investment court system that it will still opt for conventional ISDS mechanisms in its other trade deals, in which case we might not see the inexorable rise of the Investment Court System. The UK’s decision to opt for one model or the other will influence the course of the debate particularly as the UK will become one of the more active trade negotiating countries over the coming years.
In his concluding remarks, Lord Goldsmith stated that it may now be time for Australia and the UK to grow a new and invigorated cooperation in the field of common law. This is also the time for lawyers to examine closely the opportunities for collaboration in training, development of the law and finding better ways to serve clients.
Marina Kofman is Assistant Editor of the ILA Reporter. A version of this article was originally written for and published by ACICA. It is partially reproduced here with permission.
The Implications of Trump Denouncing the Trans-Pacific Partnership Agreement – Leon Trakman
President- elect Donald Trump’s announcement on Tuesday 22 November 2016 that the US will not ratify the Trans-Pacific Partnership Agreement (TPP) is not a surprise. He had stated that he would do as such throughout the presidential campaign, as had his democratic rival, Hillary Clinton.
His formal announcement is that the state parties to the TPP, including Australia, will revert to the position they had been in before the TPP was negotiated, seven years ago.
For now, there is no doubt that the TPP’s demise will disappoint the expectations of some TPP states, such as Japan, itself a late party that has strongly endorsed it. Developing countries like Vietnam that stood to benefit disproportionately from its ratification will also be disappointed.
However, President-elect Trump’s announcement is unlikely to throw transpacific economies into turmoil, not only because his position was fully expected, but because the perceived benefit of the TPP for regional trade has been hotly debated and denounced by various labour, environmental, health and consumer lobby groups, among others, from its inception.
President-elect Trump’s announcement nevertheless has strategic importance, particularly in asserting that the US will negotiate bilateral trade agreements that best suit US interests in place of the TPP. This statement is vague at best and wholly unsubstantiated. First, it amounts to little more than a broad aspiration in the absence of verification. Second, it does not stem from prior strategic planning by key US authorities. In fact, President-elect Trump has opined as much before appointing a Secretary of Commerce or a US Trade Representative. It is difficult to conceive of how replacing the world’s largest regional trade agreement with a series of bilateral trade agreements could be seriously contemplated without the serious consideration of such trade authorities. Third, as a practical matter, negotiating bilateral agreements take time, as Britain is likely to learn post-Brexit; and until they are negotiated, trade barriers are likely to continue. Fourth, there is no assurance that the US will do better in negotiating bilateral trade agreements than under a ratified TPP. States may run for cover from such bilateralism fearing that a pro-US trade deal will be too expensive to sustain, even though the US remains the world’s largest trade importer. Fifth, the US already has bilateral trade agreements with a number of transpacific countries, including its 2004 US-Australia Free Trade Agreement. Therefore, in many cases, no new bilateral treaties will eventuate in the absence of real economic impetus to negotiate them.
Importantly, the US withdrawal from the TPP, which excludes China, may provide China with even greater opportunity to conclude regional trade partnerships that exclude the US, such as the Regional Comprehensive Economic Partnership (RCEP) to which Australia is also a party.
Trump’s rejection of the TPP nevertheless has important economic consequences. The TPP is particularly attractive to member states as a prototype treaty directed at reducing and then eliminating trade barriers, including costly import and export duties. In contrast, the RCEP does not replicate that resolve, making it less attractive economically to countries like Australia seeking access to foreign markets.
If the US is to remain the primary player in defining global trade, the result of Trump’s assertion is likely to be a reluctance of states to reduce or eliminate trade barriers in bilateral trade agreements.
If President-elect Trump’s declaration against the TPP has legs to stand on, it is likely to undermine trade liberalisation more generally; and that result, feared by macro-economists, is potentially the most troubling.
Professor Trakman is a Barrister, Professor of Law and Former Dean at the University of New South Wales
President Trump: a risk to some, but an opportunity for others – Nathan Huynh
When we first heard the news of Donald Trump, financial markets initially plunged as expected. However what was remarkable was that upon hearing his surprisingly conciliatory speech, the market then underwent one of the most incredible recoveries in history. Many began to consider the opportunities that a Trump Administration brings, particularly in the legal market.
Before I go any further, I just want to make it clear that I am not a Trump supporter, nor am I a Clinton supporter and aim to make this as neutral as one can.
The short answer is that it is impossible to accurately predict how the election of Donald Trump will impact the legal market, particularly given his change of tone and direction post-election. However assuming that Trump does follow through on them, below are my thoughts on how some of his proposals will impact the legal market.
Financial regulation
One of Trump’s first post-election announcements has been that he will work towards dismantling the Dodd-Frank Act and replace it with policies that “encourage economic growth and job creation”. Assuming this means a loosening of the existing rules (which may be good or bad – depending on what side of the fence you sit on), financial institutions will be scrambling to seek legal advice on how to best prepare for and comply with Trump’s alternative to the Dodd-Frank Act.
International trade deals
If Trump does follow through on his plans to rip up the international trade deals such as the Trans-Pacific Partnership and adopt a more protectionist policy, it is safe to say that the United States’ allies and partners will not go down without a fight. There will be an increase in legal work in the area of international law, particularly in relation to the legality of overturning existing trade agreements, structuring newly negotiated trade agreements and international arbitrations with affected countries.
Infrastructure
On a less contentious note, in his acceptance speech Trump emphasised that he was going to rebuild infrastructure in the United States. Regardless of whether his claims that the infrastructure will be “second to none” turns true or not, an emphasis on infrastructure will lead to a need for legal advice in the areas of construction, finance, real estate and regulatory issues (and hopefully some of this will involve international parties, leading to some opportunities world wide).
Immigration and employment law
Let’s now get the elephant in the room out of the way. During the campaign, Trump announced proposals requiring employers to check the immigration status of their employees. I would imagine such a measure would leave businesses scrambling for legal advice on how to ensure compliance and (sadly) advice on whether their workers have any chance of staying in the United States.
Healthcare and insurance
In a country without universal health care, any change to healthcare and insurance laws will have a profound impact on most Americans. Insurance firms, employers and healthcare providers will no doubt need to seek legal advice should Trump follow through with the Republican party’s desire to get rid of Obamacare (which seems highly likely).
Conclusion
In summary, the election of Donald Trump will lead to a strong level of change and uncertainty. Nobody can predict what direction he will take the free world, however one thing is certain – like always, any change can be translated into an opportunity.
Nathan Huynh is an Australian-based lawyer practicing in the finance division of a leading global law firm.