The Evolving Dynamics of Treaty Negotiation

On Tuesday the 23rd of August, Holman Webb  hosted the third instalment of the International Negotiation & Dispute Resolution Series in Sydney. The NSW Young Lawyers International Law Committee welcomed the participants, introducing the chosen topic of discussion; Negotiating Bilateral and Multilateral Treaties.

The chairperson, Jeremy Shelley (Private International Law and Commercial Policy Unit of the Attorney-General’s Department) engaged in conversation with panellists Dr Chester Brown (Professor of International Law and International Arbitration at the University of Sydney, Barrister at 7 Wentworth Selborne Chambers ), Rhonda Piggott ( Director, NSW State Office of DFAT) and Richard Braddock (Partner of Lexbridge, previous treaty negotiator for the Australian Government). The speakers shared their diverse experience in international law, providing insight into the legal skills required of young lawyers who seek to participate in international dispute resolution, specifically in the area of treaty negotiation.

Through interaction with the panel, the participants were exposed to the pragmatics of treaty negotiation. Describing the structure of the TPP and ASEAN provided an example of the extensive resources required to conduct negotiation between multiple parties. Before negotiating with another country, the speakers noted the importance of identifying (a) a nation’s stakeholders,(b) a country’s objectives, © capital risk and (d) market access. Domestic legal processes are reminiscent of the treaty making process insofar as the policy offices must consider the wants of the general public in conjunction with the needs of stake holders. In this way, the participants appreciated the relationship between international and domestic legal procedure.

A contextual approach was taken by the panellists when responding to issues concerning the mechanics of international dispute resolution. The process of drafting Bilateral and Multilateral Investment Treaties have evolved, as negotiators are currently required to employ “tighter language” and transparency in the decision making process, as seen in the recent tobacco dispute. The participants were exposed to the historical context in which Bilateral Investment Treaties have been established, paying close attention to the relationship between developed and developing countries. The initial negotiations conducted between developed countries and nations with previously closed economies (including economies which had employed Import Substitution Industrialisation policies) were compared to current agreements between developed and developing nations, such as ASEAN. The panel concluded that developing countries have played a significant role in the changing landscape of treaty negotiation . Regarding multilateral and plurilateral investment treaties conducted by the WTO, Rhonda Pigget spoke of the historical context in which this institution was established (namely, the Bretton Woods conference), providing insight into the purpose of initiating negotiation between countries. The speakers agreed that the principal objective in dispute resolution is to ensure that both parties understand the obligations of the agreement, thus enabling a treaty to become a powerful mechanism for economic growth in developed and developing countries.

Commenting on the politics of negotiation, the seminar enabled the participants to understand the political pressures underpinning treaty negotiations. If negotiators are unaware of a country’s socio-political objective, the resolution may not adequately serve the intentions of the parties involved. Finally, the panellists emphasised the importance of negotiating political value with economic gains, as it is the distinction between advantage and value that defines international dispute resolution as a dynamic and evolving field of law.

Author: Sophie Wakefield