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)

Mondaq | 14-May-2018
New Zealand has recently signed "side letters" to exclude compulsory Investor State Dispute Settlement with five members of the CPTPP – Brunei Darussalam, Malaysia, Peru, Viet Nam and Australia.
Friends of the Earth Australia | 3-May-2018
The ISDS system impedes on national sovereignty to the benefit of corporations, yet places no obligations on investors to behave responsibly, creating an asymmetric system that gives multinationals the same rights as sovereign states.
Library of Congress | 28-Mar-2018
On March 9, 2018, the New Zealand Minister for Trade and Export Growth, David Parker, announced that the government has signed “side letters” with five other countries that are also party to the TPP11 that exclude compulsory investor-state dispute settlement.
South China Morning Post | 12-Mar-2018
Political party says the newly signed Trans-Pacific Partnership trade pact, which contains similar clauses to the Hong Kong deal, could prompt more costly challenges in The Hague
Gisborne Herald | 26-Feb-2018
Profit is king. People are the pawns, and the Government will seem to be in favour of supra-national conglomerates if it signs this “new” TPP inclusive of the ISDS.
Scoop | 22-Feb-2018
Canada and the US are set to agree on withdrawing the controversial investor-state dispute settlement (ISDS) mechanism from the North American Free Trade Agreement (NAFTA) between the US, Canada and Mexico.
London South East | 19-Feb-2018
Churchill Mining updated the market on the progress made in its attempts to annul an international tribunal’s award against it.
Express Tribune | 8-Feb-2018
As a National Accountability Bureau inquiry into alleged embezzlement in Reko Diq case remains on hold, various stakeholders made contradictory claims before the Public Accounts Committee about people who could be blamed for any corruption in the deal.
EJIL: Talk! | 7-Feb-2018
The European Commission reportedly proposed a model for the fast track ratification of trade deals that should be applied for the first time to the new trade agreements with Australia and New Zealand.
Express Tribune | 22-Jan-2018
The TCC tribunal failure did not reflect an internal failure on the part of Pakistan’s state apparatus as much as it did the hegemonic nature of the global BIT regime that developing countries have been subjected to by the West.

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