Approaches of International Courts and Tribunals to the Award of Compensation in International Private Property Cases and Implications for the Reform of Investor-State Arbitration

As the amount of compensation being awarded in investment tribunals rises, this report analyzes how it is calculated in other international courts and tribunals to help inform reform processes that seek to address the negative socio-economic impacts of investment treaties.In recent years, investor–state arbitral tribunals have awarded increasingly high amounts of compensation to foreign investors, which can exacerbate the negative impacts of investment treaties on people and the economy in host states. This paper contributes to discussions on how to address this issue by comparing approaches used to award compensation in investment tribunals with those used by some of the most active and/or high-profile international courts and tribunals in international private property claims cases.From this comparative analysis, the paper identifies the following options for states and other proponents to consider when considering investor–state dispute settlement reform:Crafting new treaty language that requires investor–state arbitral tribunals to apply a different standard of reparation to customary international law or provides greater guidance on how to put such standards of reparation into practice.Requiring investor–state arbitral tribunals to engage more with the decisions of domestic mechanisms regarding reparation for investment treaty breaches.Encouraging parties to seek agreement on matters of reparation, including through negotiated or mediated settlements following arbitral decisions on the merits.Encouraging—or requiring—greater use of tribunal-appointed experts to reduce reliance on party-appointed experts when calculating compensation for investment treaty breaches

Australian Professional Practice Bodies and the Tort of Negligent Investigation

The New South Wales Supreme Court has examined the statutory and common law duties of the New South Wales Health Care Complaints Commission and the New South Wales Medical Board in the recent case of Attorney General (NSW) v Bar-Mordecai [2008] NSWSC 774. The judgment establishes that a professional practice body investigating the alleged misconduct of a doctor will rarely be liable under Australian statutory or common law duties to compensate that doctor for harm arising as a result of negligent investigatory practices. In particular, it establishes that such a body owes no duty to take reasonable care to avoid psychiatric injury to a medical practitioner against whom a complaint has been lodged and whom it is investigating. It is argued that the differing approaches to the tort of negligent investigation in Canada and Australia stem from differences not only in policy values but in the legal frameworks used in each jurisdiction to determine the existence of duties of care at common law

Recent legal developments and the authority of the Australian Therapeutic Goods Administration

Recent legal developments have highlighted the need for greater support from the Federal Government for the authority of the Therapeutic Goods Administration (TGA) to ensure, by pre-approval assessments and post-approval regulation, the safety of listed medicines in Australia. One of these developments concerns the impact of ongoing civil litigation in Australian courts led by Pan Pharmaceuticals stakeholders to recover compensation from the government for the losses they incurred following the TGA's post-listing shut-down of that pharmaceutical manufacturing company in 2003. Another factor is the recently announced governmental policy to outsource to the United States Food and Drug Administration (FDA) and the European Medicines Agency (EMEA) safety assessments of foreign drug manufacturers whose products will be used in Australia

Renewable energy development on the Indigenous Estate: Free, prior and informed consent and best practice in agreement-making in Australia

In Australia, large-scale renewable energy projects are being developed or proposed on lands over which First Nations hold rights and interests. Our review of the literature on renewable energy and First Nations peoples globally indicates that renewable energy projects are likely to present risks in the distribution of socio-economic and environmental impacts, as well as significant opportunities for First Nation benefit. This paper explores the conditions under which First Nations people with communal property rights and interests in their traditional land are likely to derive benefit from large scale renewable energy projects. We examine ‘free, prior and informed consent’ (FPIC), a widely-recognised international human rights standard that sets out a consent, information and consultation framework for proposed developments on First Nation land. In calling for the just economic inclusion and participation of First Nation people in large-scale renewable energy projects we propose that ‘free, prior and informed consent’ offers a suitable framework for approaching the development of these projects. Furthermore, we detail what is best, and worst, practice in agreement making, based on previous First Nations agreement making experience, predominately with the resource extraction sector