IIAs in Singapore and the rule of law promise
IIAs are known to bite. Investor–state disputes are costly to defend and may lead to consequential amounts of compensation. Under certain conditions, they can also lead to delays or abandoning of regulatory action in the shadow of possible litigation.[1]
These important costs of IIAs raise the question of whether the treaties offer commensurate advantages to states that enter into them. Central among these claimed positive effects of IIAs is that they improve governance conditions (the rule of law) in host countries.[2] It is on this point that Singapore’s experience with IIAs is particularly instructive. With its highly efficient bureaucracy, manageable size, and strong commitment to the respect of international law, the city state provides close to ideal domestic conditions for IIAs to affect governance; it constitutes a “most likely case study” for it. Singapore’s experience, as briefly presented below, highlights the challenges that IIAs can pose in even the best of governance environments and, in turn, raises questions as to the extent to which the treaties are calibrated to the goals that policy-makers and advocates set for them.
The findings below are part of a deep dive empirical study into the workings of the Singaporean administration as part of a broader project on the internalization of IIAs in Asia led by N. Jansen Calamita and Ayelet Berman.[3] In the context of that project, I looked at ways in which investment obligations are taken into account in the administration’s decisions—the extent to which they are “internalized”—through a series of interviews with government officials and an extensive review of archival materials.[4]
Singapore, a well-oiled internalization machine
A number of structural factors at the international, national, and administrative levels are generally recognized to potentially influence the extent to which international norms are taken into account at the domestic level.[5] International factors relate to international treaties or institutions—in our case, the IIA regime. National factors pertain to a country’s specific characteristics from a geographical, organizational, political, or legal standpoint. The organization, culture, and capacity of the public administration also play a significant role.
Taken together, the national and public administration characteristics of Singapore suggest that it is structurally in an excellent position to honour its IIA commitments; like a well-oiled machine, it is a most likely case study of the internalization of IIAs and hence for their possible effects on national governance.
First, Singapore’s political and geographical characteristics minimize the number of key actors in the bureaucracy whose agreement is needed for the internalization of an international norm, which renders the process smoother. With a territory of 719 km2, a population of 6 million, and a public service comprised of about 150,000 public officers,[6] Singapore is a small and centralized city state. In comparison with other case studies on larger or federal states, the number of actors whose actions are needed for an international norm to penetrate from a high-level entry point into the bureaucracy is much lower. In addition, Singapore is a unitary dominant-party parliamentary republic.[7] Legislative initiative lies primarily with the executive, which allows for a coordinated/centralized approach to law-making and bills that normally do not undergo modifications once they are introduced to Parliament.[8] Again, this simplifies the internalization of international obligations by minimizing the number of key actors whose agreement is needed for this process.
Moreover, Singapore’s public administration arguably represents a nearly ideal environment for the internalization of international obligations. The administration has high regulatory capacity, is composed of a robust and competent civil service, and is very efficient.[9] Singapore dedicates significant resources to the achievement of its policies.[10] In international rankings, such as the World Bank Worldwide Governance Indicators, the city state regularly scores at the top for regulatory quality and government effectiveness,[11] all seen as highly relevant to internalization. At the same time, it also scores very low for corruption,[12] which is among the biggest barriers to effective governance.
Finally, the international rule of law is perceived within the administration as central to Singapore’s success and prosperity, which also favours a receptive attitude of bureaucrats toward international norms. Both economic relevance and promoting international legality are part of the core principles of Singapore’s foreign policy.[13] In this vein, there is a sense among officials that Singapore must respect and uphold the legitimacy of international economic law, including IIAs.[14]
So, how are IIAs taken into account in such a conducive governance environment, and what are their effects on it?
IIAs and the rule of law promise in Singapore
In line with the conducive characteristics described above, Singapore demonstrates a high level of internalization of its IIA obligations in its governance. Capacity and knowledge regarding international investment law are high in specialized ministries and agencies, and there is also a sustained effort to disseminate relevant information across the entire administration. Both agencies in charge of IIAs, the Attorney General’s Chambers (AGC) and the Ministry of Trade and Industry, have taken active steps to increase awareness of investment obligations in non-specialized ministries and the administration at large. They have also established backchannels through which potentially litigious situations that occur in line agencies would be brought to their attention. Particular care is taken to ensure that information is provided at an appropriate level for non-experts in line agencies and at an appropriate frequency, using both plain language terms and relatable case studies to draw attention. Moreover, the overall collaborative style of the Singaporean administration means that line agencies typically take expert agencies’ advice into account and buttresses the effectiveness of these efforts.
Against the backdrop of this consistent and concerted effort by the expert agencies responsible for IIAs and the ensuing level of internalization, the Singapore experience still shows little evidence of Singapore’s IIAs affecting the rule of law in Singapore. Rather, Singapore’s overall approach to the internalization of IIAs is highly targeted to the object of those treaties—namely foreign investors and investments—and has led to ad hoc regulatory solutions to ensure compliance with specific obligations. Both render broader effects on governance unlikely.
Existing information measures about IIAs caution bureaucrats only about their dealings with foreign investors, casting doubt about the likelihood of a general improvement of the rule of law. According to interviewees, an important message in training programs is to pay closer attention when dealing with foreign companies and to particular cases where an envisaged measure may negatively impact them (i.e., impact their “pocketbooks”). Similarly, when specialized agencies review potentially litigious draft regulatory measures, they pay particular attention to the presence of foreign companies that may be affected by them.
In addition, the two publicly known instances where compliance with IIA obligations led to tangible changes in Singapore’s regulations or its procedural approach to a regulation were narrowly calibrated to the cases at hand and have not triggered broader modifications to governance practices. Both examples illustrate the government’s broader approach to IIAs, which is detailed in the research on which this piece is based.
The first example that interviewees shared concerns the introduction of a measure called the Additional Buyer’s Stamp Duty (ABSD) for the purchase of residential property in Singapore.[15] Under Singaporean law, foreigners are liable to pay a supplementary tax (compared to Singapore citizens) when purchasing residential property.[16] The ABSD was put in place in 2011, after Singapore had entered into FTAs with the United States and the European Free Trade Association (EFTA), under which it accorded national treatment to nationals of these countries with respect to taxation and investment, both pre- and post-establishment.[17] As a result of these commitments and upon advice from the AGC, the authorities limited the originally proposed scope of the ABSD to comply with this IIA obligation. United States and EFTA state citizens were given an exemption to ABSD liability, entitling them to rights equivalent to those of Singaporean citizens.[18]
The second example pertains to Singapore’s particularly cautious regulatory approach to tobacco plain packaging. Singapore has one of the strictest regulatory frameworks for tobacco control in the world and has been a pioneer in smoking reduction policies in Asia and the world. It was the first country in the world to ban tobacco product advertising in 1971 and the first in Asia to introduce graphic warnings on cigarette packs in 2004. Thus, it is revealing that the Ministry of Health proceeded formally with its decision to implement plain packaging requirements for tobacco only in October 2018.[19] The country adopted the necessary legal amendments in February 2019, and the regulatory framework became effective on July 1, 2020. [20]
The timing of Singapore’s adoption of plain packaging regulations was informed by the administration’s awareness of the investment and trade litigation risks involved, as expressly acknowledged by the Minister of Health before Parliament as early as 2013.[21] Interviewees confirmed that the government only decided to go ahead with its plain packaging measures following the favourable resolution of claims concerning plain packaging that had been brought against other states under IIAs[22] and at the WTO.[23]
As with the ABSD, the government’s approach to plain packaging was a unique departure from Singapore’s usual administrative practice, which is less transparent. Public consultations are not mandatory in Singapore, and while they do occur, their format is at the discretion of the responsible agency. By contrast, the tobacco plain packaging procedure took over 5 years to come to fruition and included three consecutive rounds of public consultations, one in 2015 and two in 2018,[24] which appears to be an unprecedented number. Moreover, the results of consultations are not consistently published in Singapore and, when they are, usually take the form of a government-prepared summary. In the tobacco plain packaging case, the government provided the background scientific information on which the regulation is based and the full responses that participants submitted,[25] again departing from usual practice. By way of comparison, according to the Ministry of Health’s website, several public consultations on other health-related regulations have taken place since the 2018 plain packaging consultations. None have led to the publication of the scientific background data on which the regulations are based or of the public’s responses.[26] This again suggests the ad hoc and narrowly calibrated nature of governance action to ensure compliance with its IIA obligations.
Conclusion
Given Singapore’s overall high level of internalization, these findings cast doubt over the plausibility of the hypothesis that IIAs, if internalized, lead to improvements in governance and the rule of law.[27] Both of the examples above confirm prior research on the negative effects of IIAs on domestic governance (usually termed regulatory chill), showing that while the phenomenon exists, with high regulatory capacity, countries are able to limit it in both time and scope. [28] More importantly, these instances also show a conversely narrow focus on compliance, with no evidence of intent to implement broader policy changes on the part of the administration. They thus offer a novel nuance regarding the role of governmental capacity and its relation to the impact of IIAs on national governance: the high capacity to tailor a precise response to a risky situation may, based on the Singaporean experience, in fact, limit the likelihood of broader rule of law improvements. In turn, if IIA internalization itself is predicated on high regulatory capacity, then the nuance above may raise a broader question of whether IIAs are well calibrated to achieve the rule of law promise that is attributed to them.
Author
Dafina Atanasova is Senior Researcher, Geneva Center for International Dispute Settlement (CIDS), Graduate Institute Geneva (IHEID)/University of Geneva, dafina.atanasova@graduateinstitute.ch.
Notes
[1] See, e.g., Tienhaara, K. (2011). Regulatory chill and the threat of arbitration: A view from political science. In C. Brown & K. Miles (Eds.), Evolution in investment treaty law and arbitration. Cambridge University Press. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2065706; Moehlecke, C. (2020). The chilling effect of international investment disputes: Limited challenges to state sovereignty. International Studies Quarterly, 64(1). https://doi.org/10.1093/isq/sqz077; Berge, T. L., & Berger, A. (2021). Do investor-state dispute settlement cases influence domestic environmental regulation? The role of respondent state bureaucratic capacity. Journal of International Dispute Settlement, 12(1). https://academic.oup.com/jids/article/12/1/1/6261107
[2] See e.g., Dolzer, R. (2005). The impact of international investment treaties on domestic administrative law. N.Y.U. Journal of International Law and Policy, 37, 953–957. https://www.iilj.org/publications/the-impact-of-international-investment-treaties-on-domestic-administrative-law/; Schill, S. (2009). The multilateralization of international investment law. Cambridge University Press, 370 et seq; Echandi, R. (2011). What do developing countries expect from the international investment regime? In J. Alvarez (Ed.), The evolving international investment regime: Expectations, realities, options Oxford University Press.
[3] Jansen Calamita, N., & Berman, A. (2022). Investment treaties and the rule of law promise: An examination of the internalisation of international commitments in Asia. Cambridge University Press.
[4] Atanasova, D. (2022). Investment treaties and the rule of law in Singapore. In N. Jansen Calamita, & A. Berman, (Eds.) Investment treaties and the rule of law promise: An examination of the internalisation of international commitments in Asia. Cambridge University Press.
[5] For the typology and interpretation of all factors see: Jansen Calamita, N. & Berman, A. (2022) Introduction. In N. Jansen Calamita & A. Berman (Eds.), Investment treaties and the rule of law promise: An examination of the internalisation of international commitments in Asia. Cambridge University Press.
[6] See Government of Singapore (n.d.). Public service staff strength (civil service & statutory board), information for 2018. Data.gov.sg. https://data.gov.sg/dataset/public-service-staff-strength-civil-service-statutory-board?view_id=3bebe6b2-2396-4072-9b9a-8d9602bc2887&resource_id=899105b0-af9b-47ed-85d2-ab1c2a8be0e5.
[7] Constitution of the Republic of Singapore, 9 August 1965. See also: Hay, D. (1999). Halsbury’s laws of Singapore: Administrative and constitutional law (Vol. 1). Butterworths Asia.
[8] Constitution of the Republic of Singapore, 9 August 1965. See also Hay, D. (1999). Halsbury’s laws of Singapore: Administrative and constitutional law (Vol. 1). Butterworths Asia.
[9] See: D. S. Jones. (2016). Governance and meritocracy: A study of policy implementation in Singapore. In J. S. T. Quah, The role of the public bureaucracy in policy implementation in five ASEAN countries (p. 297–369). Cambridge University Press.
[10] Ibid.
[11] World Bank. (n.d.). Worldwide governance indicators. https://info.worldbank.org/governance/wgi/Home/Reports. See also Kaufmann, D., Kaay, A., & Mastruzzi, M. (2010). The worldwide governance indicators: Methodology and analytical issues (World Bank policy research working paper No. 5430). Under the Worldwide Governance Indicators, Singapore has ranked in the top 10th percentile since 1996; under V-Dem, the country is among the countries within the “maximum” score (over 3) for the indicator “Rigorous and impartial public administration.”
[12] Under the Transparency International Corruption Perception Index, Singapore ranked third out of 198 in 2018, and it has ranked in the top 10 countries since the creation of the index in 1995.
[13] Ministry of Foreign Affairs, Singapore. (2017). Transcript of remarks by Minister for Foreign Affairs Dr Vivian Balakrishnan at the MFA townhall on 17 July 2017. https://www.mfa.gov.sg/Newsroom/Press-Statements-Transcripts-and-Photos/2017/07/Transcript-of-Remarks-by-Minister-for-Foreign-Affairs-Dr-Vivian-Balakrishnan-at-the-MFA-Townhall-on. See also Ministry of Foreign Affairs, Singapore (2019). S Rajaratnam Lecture 2019 by The Honourable Chief Justice Sundaresh Menon—The rule of law, the international legal order, and the foreign policy of small states. https://www.mfa.gov.sg/Newsroom/Press-Statements-Transcripts-and-Photos/2019/10/20191015-S-Raj-Lecture.
[14] See also: Singapore Parliamentary debates, official report (28 May 2009) (Vol. 85) at columns 687–692 (Lim Hng Kiang, Minister for Trade and Industry).
[15] As one interviewee put it, apparently “all the alarms went off” when this regulation was introduced, and AGC was alerted from two agencies about the potential problem with IIA compliance.
[16] See: Stamp Duties Act (Cap 312, 2006 Rev Ed), First Schedule; See also: Inland Revenue Authority of Singapore, Additional buyer’s stamp duty (ABSD). https://www.iras.gov.sg/IRASHome/Other-Taxes/Stamp-Duty-for-Property/Working-out-your-Stamp-Duty/Buying-or-Acquiring-Property/What-is-the-Duty-that-I-Need-to-Pay-as-a-Buyer-or-Transferee-of-Residential-Property/Additional-Buyer-s-Stamp-Duty–ABSD-/.
[17] U.S.–Singapore FTA, (2003); EFTA–Singapore FTA, (2002).
[18] Inland Revenue Authority of Singapore. (n.d.). Foreigners eligible for ABSD remission under free trade agreements (FTAs), https://www.iras.gov.sg/irashome/Other-Taxes/Stamp-Duty-for-Property/Claiming-Refunds-Remissions-Reliefs/Remissions/Foreigners-Eligible-for-ABSD-Remission-under-Free-Trade-Agreements–FTAs-/.
[19] Ministry of Health, Singapore. (2018, October 31). Singapore to introduce standardized packaging and enlarged graphic health warnings.
[20] Tobacco (Control of Advertisements and Sale) (Amendment) Act 2019 (No. 9 of 2019); Tobacco (Control of Advertisements and Sale) (Appearance, Packaging and Labelling) Regulations 2019 (No. S 480/2019); WTO notification: G/TBT/N/SGP/49, 1 July 2019.
[21] Singapore Parliamentary Debates, Official Report (14 January 2013) (Vol. 90) (Gan Kim Yong, Minister of Health).
[22] Philip Morris Asia Limited v. The Commonwealth of Australia (PCA Case No. 2012-12), Award on Jurisdiction and Admissibility (December 17, 2015); Philip Morris Brands Sàrl, Philip Morris Products S.A. and Abal Hermanos S.A. v. Oriental Republic of Uruguay (ICSID Case No ARB/10/7), Award (July 8, 2016).
[23] WTO Panels, Australia—Certain measures concerning trademarks, geographical indications and other plain packaging requirements applicable to tobacco products and packaging, Panels Reports of 28 June 2018, WT/DS435/R, WT/DS441/R WT/DS458/R, WT/DS467/R. Interviewees specified that Singapore decided not to wait for a decision by the WTO Appellate Body – Interview B4 2019; Interview C5 2019.
[24] See: Ministry of Health (2018), supra note 19, together with documents mentioned in it.
[25] See: Ministry of Health, Singapore. (2018). Public consultation on proposed tobacco-control measures in Singapore, https://www.moh.gov.sg/proposed-tobacco-control-measures.
[26] Source: Reaching Everyone For Active Citizenry @ Home. (n.d.). Archives of public consultations conducted by Singaporean agencies. https://www.reach.gov.sg/participate/public-consultation/archives.
[27] This statement is further supported by the fact that finding a positive effect on governance practices requires a high threshold, as identified in the existing literature. See e.g., Bonnitcha, J. (2014). Substantive protection under investment treaties: A legal and economic analysis. Oxford University Press, 133–39.
[28] See: Moehlecke, C. (2020). The evidence is also complementary to the findings of Berge and Berger (2021) who study the chilling effect of investment claims on environmental regulation and find that regulatory capacity is a predicate for regulatory chill.