Pacific

Pacific states have signed 72 trade and investment agreements, 39 of which have been concluded by Australia alone.

Most of Australia’s free trade deals contain investor-state dispute settlement (ISDS) provisions, including those with ASEAN and New Zealand (AANZFTA), China (ChAFTA), India, Indonesia, 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’s more recent agreements such as ChAFTA, the Indonesia FTA, the Hong Kong FTA and the Trans-Pacific Partnership (TPP) include ISDS.

The Philip Morris vs. Australia case is the most well-known dispute to date. When Australia introduced plain packaging for all tobacco products in 2011, Philip Morris initiated a claim against Australia before an arbitral tribunal. In its December 2015 decision, the tribunal dismissed the case, albeit on legal grounds only. Australia spent A$24 million but Philip Morris only paid half, leaving the Australian taxpayers to pay the rest.

The Pacific has been the least targeted region. Only Australian investors have initiated disputes on seven registered occasions, two of which were under the Energy Charter Treaty.

Photo: Dominic Hartnett / CC BY-NC-ND 2.0

(April 2020)

Health Canal | 19-May-2016
“Despite the losses and defeats, tobacco companies will keep coming back for more. They will fight on regardless in order to delay and disrupt the rollout of the World Health Organization’s best-practice tobacco control measures,”
Sidney Morning Herald | 11-Apr-2016
US mining company Nucoil is using a free trade agreement to put pressure on the Australian government to pay compensation over cancelled licences.
Politico | 4-Jan-2016
The inclusion of an ISDS in an EU agreement could raise the likelihood of such cases being brought against all kinds of public interest and health protecting policies in the future.
The Age | 21-Dec-2015
I only wish to caution that we should be wary of anyone who suggests that the decision demonstrates that ISDS isn’t problematic.
The Australian Financial Review | 18-Dec-2015
Cigarette company Philip Morris has suffered another defeat in its long-running bid to overturn Australia’s plain packaging laws.
EurActiv | 8-Dec-2015
The EU has agreed to launch negotiations with New Zealand and Australia. The two countries are ready to speed up talks, and reach a deal in a reasonable timeframe.
Lexology | 4-Dec-2015
A guide to ISDS in the China-Australia Free Trade Agreement: A hollow promise or an answer to ISDS’ critics?
| 3-Dec-2015
The forced re-regulation of Queensland’s $2 billion sugar industry could breach international trade agreements and threaten foreign investment, Queensland Deputy Premier Jackie Trad said.
Fool | 24-Nov-2015
Philip Morris is dragging countries with tight tobacco regulations into costly legal battles.
The Guardian | 11-Nov-2015
Leading arbitration lawyer says there are critical loopholes in the Trans-Pacific Partnership’s investment chapter that leave Australia wide open