Pacific

Pacific states have signed about 65 trade and investment agreements, 40 of which have been concluded by Australia alone.

Most of Australia’s trade deals specify investor-state dispute settlement (ISDS) provisions, including those with China (ChAFTA, in the final stage of being ratified), India, Korea, Mexico or Turkey.

Following a dispute with Philip Morris over an anti-tobacco law, Australia claimed it would refrain from engaging into new investment agreements with ISDS.

However Australia has signed ChAFTA and the Trans-Pacific Partnership (TPP) whose investment chapter has revealed the inclusion of an ISDS mechanism that would undermine public health, the environment and other public-interest ‘safeguards’.

The Philip Morris vs. Australia case is the most well-known dispute to date. When Australia voted an anti-tobacco law forcing tobacco companies to use plain packaging, US company Philip Morris initiated an ISDS dispute through its Hong Kong-based subsidiary. It invoked the Australia-Hong Kong bilateral investment treaty (BIT) due to the non-inclusion of ISDS provisions in the Australia-US BIT. The case has been eventually dismissed on procedural grounds. More than US$35 million of taxpayer money was reported to have gone up in smoke in legal fees only.

The Pacific has been the least targeted region. Only Australian investors have initiated disputes on two registered occasions.

(January 2016)

Bangkok Post | 12-Jun-2019
Australian gold mining firm Kingsgate Consolidated is seeking negotiations with the new Thai government over the case in which it was ordered to cease mining operations in Phichit two years ago.
AFTINET | 12-Jun-2019
A new study of trade and investment deals concluded in 2018 by UNCTAD shows that most have either omitted ISDS altogether or severely limited its scope, reports AFTINET
Reuters | 14-May-2019
Poland’s prime minister and other government officials will meet to discuss a threat by Australia’s Prairie Mining to sue Warsaw over difficulties it faced in developing coal projects
UNSW | 7-May-2019
A former investment treaty between India and Australia allows for a legal claim if the mine doesn’t go ahead, but this shouldn’t deter a federal government, says a UNSW Law researcher.
Kluwer Arbitration Blog | 30-Apr-2019
Instead of categorically dismissing ISDS, the IACEPA clarifies the protection that the States are willing to grant to investors; and procedural rules that they are willing to adopt.
The Guardian | 23-Apr-2019
Florida-based APR Energy sought compensation for treatment of its gas turbines.
AFTINET | 11-Apr-2019
Detailed scrutiny of the text of the recent Indonesia trade deal has revealed that there are no provisions to cancel the old 1993 Indonesia-Australia bilateral investment agreement.
Bangkok Post | 1-Apr-2019
The Australian mining company Kingsgate Consolidated, armed with a US$55-million insurance payout for the closure of its gold mine in Thailand, says it now has the financial means to pursue its arbitration case against the Thai government.
Lexology | 29-Mar-2019
On 26 March 2019, Australia and Hong Kong signed the Australia-Hong Kong Free Trade Agreement and its associated investment agreement.

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