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Agreement between Australia and Japan for an Economic Partnership

Short title:
Australia - Japan EPA (2014)
Treaty type:
Treaties with Investment Provisions
In force
Date of signature:
Date of entry into force:
Treaty full text:
Treaty investment chapter text:
IIA content:

Relationships with other agreements:

Coexists with The Energy Charter Treaty (1994)
Coexists with RCEP
Coexists with TPP (2016)

Mapped treaty elements

Reference to right to regulate (e.g. regulatory autonomy, policy space, flexibility to introduce new regulations) No
Reference to sustainable development No
Reference to social investment aspects (e.g. human rights, labour, health, CSR, poverty reduction) No
Reference to environmental aspects (e.g. plant or animal life, biodiversity, climate change) No
Definition of investment
Type of definition Asset-based definition
Limitations to the definition of investment
Excludes portfolio investment No
Excludes other specific assets (e.g. sovereign debt, ordinary commercial transactions, etc.) No
Lists required characteristics of investment Yes
Contains "in accordance with host State laws" requirement No
Sets out closed (exhaustive) list of covered assets No

Definition of investor
Definition included Yes
Specifying natural persons covered
Includes permanent residents Yes
Excludes dual nationals No
Specifying legal entities covered
Includes requirement of substantial business activity No
Defines ownership and control of legal entities No

Denial of benefits (DoB)
DoB clause included Yes
Content of the DoB clause
"Substantive business operations" criterion Yes
Applies to investors from States with no diplomatic relations or under economic/trade restrictions Yes
Discretionary ("Party may deny") or mandatory ("benefits shall be denied") Unilaterally discretionary

Substantive scope of the treaty
Limiting substantive scope of the treaty
Excludes taxation Yes
Excludes subsidies, grants Yes
Excludes government procurement Yes
Excludes other subject matter No

Temporal scope of the treaty
Investments covered Applies to both pre-existing and post-BIT investments
Disputes covered Not applicable

National treatment (NT)
Type of NT clause Pre- and post-establishment
Reference to "like circumstances" (or similar) Yes

Most-favoured-nation (MFN) treatment
Type of MFN clause Pre- and post-establishment
Exceptions from MFN obligation
Economic integration agreements No
Taxation treaties Yes
Procedural issues (ISDS) Yes

Fair and equitable treatment (FET)
Type of FET clause FET qualified
FET qualified
By reference to international law CIL/minimum standard of treatment
By listing FET elements (exhaustive or indicative list) No
FET modifiers None

Full protection and security Standard
Prohibition on unreasonable, arbitrary or discriminatory measures No
Scope of measures covered Indirect expropriation mentioned
Refining expropriation clause
Indirect expropriation defined Yes
Carve-out for general regulatory measures Yes
Carve-out for compulsory licenses in conformity with WTO Yes

Protection from strife
Relative right to compensation (comparator) MFN and NT
Absolute right to compensation in certain circumstances No

Transfer of funds
Includes transfer of funds Yes
Exceptions to the transfer of funds obligation
Balance-of-payments exception Yes
Other specific exceptions (e.g. to protect creditors, etc.) Yes

Prohibition of performance requirements (PRs)
Includes prohibition of PRs Explicit PR clause
Type of PR clause List of prohibited PRs

Umbrella clause No
Entry and sojourn of personnel (subject to local laws) No
Senior management (nationality) Yes
Directed at States (obligation to publish laws and regulations) Yes
Directed at investors Yes

Health and environment (any mentioning in the text, except preamble) Yes
Labour standards (any mentioning in the text, except preamble) No
Right to regulate (any mentioning in the text of this or similar concepts, except preamble) No
Corporate social responsibility (any mentioning in the text, except preamble) No
Corruption (any mentioning in the text, except preamble) Yes
Not lowering of standards (typically environment and/or labour standards) No
Subrogation clause Yes
Non-derogation clause (in case of IIA’s conflict with other norms, more favourable rules apply to investors) No
Investment promotion
Reference to specific promotion activities in text of agreement (not preamble) Yes

Essential security exception
Exception included Yes
Exception defined (exceptional circumstances described in more detail) Yes
Exception self-judging Yes

General public policy exceptions
Public health and environment Yes
Other public policy exceptions (e.g. cultural heritage, public order, etc.) Yes

Prudential carve-out (concerns financial measures) Yes
Scheduling and reservations (in treaty texts and annexes) Negative-list reservations
ISDS included No
Alternatives to arbitration Not applicable
Scope and consent
Scope of claims: general approach (chapeau paragraph of ISDS clause) Not applicable
Limitations to the scope of ISDS
Limitation of provisions subject to ISDS Not applicable
Exclusion of policy areas from ISDS Not applicable
Special mechanism for taxation or prudential measures Not applicable
Type of consent to arbitration Not applicable

ISDS forum options
Domestic courts of the host State Not applicable
ICSID Not applicable
UNCITRAL Not applicable
Other forums Not applicable
Relationship between forums Not applicable

Other specific ISDS features
Limitation period for submission of claims Not applicable
Provisional measures Not applicable
Consolidation of claims Not applicable
Limited remedies (specifying available types of remedies) Not applicable
Treaty interpretation
Affirms binding interpretation by contracting parties or their joint committee Not applicable
Requires certain questions to be submitted to contracting parties (renvoi) Not applicable
Regulates submissions by non-disputing State party Not applicable
Transparency in arbitral proceedings
Requires documents to be made publicly available Not applicable
Requires hearings to be open to the public Not applicable
Regulates amicus curiae submissions by third (non-disputing) parties Not applicable

Mechanism for consultations between State parties No
Institutional framework (committee) Yes
Technical cooperation/capacity building No
Treaty duration
Years of initial treaty term Indefinite

Automatic renewal Indefinite term
Amendment and termination
Unilateral termination
Includes modalities for unilateral termination Yes
Length of notice period One year prior notice
Includes modalities for amendment or renegotiation No
"Survival"/"sunset" clause length None

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Mapped by: