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)

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
NZ Herald | 30-Oct-2015
New Zealand has an open mind about replacing traditional investor-state dispute settlement (ISDS) with a new international court-based system proposed by the European Union.
| 28-Oct-2015
Catherine Beard claims there is no problem with the ability of corporations to sue the New Zealand government in offshore tribunals for loss of profits under the TPPA. She bases this on "commissioned research" from the New Zealand Institute of Economic Research (NZIER).
The Conversation | 9-Oct-2015
Up until now, Australia has never agreed to provide American investors with access to Investor-State Dispute Settlement (ISDS), whereas Canada has. In total Canada has faced 35 challenges. Australia has been subjected to only one case.
Australasian Lawyer | 9-Oct-2015
Law firms are among the many Australian businesses likely to benefit from the Trans-Pacific Partnership.
Global Trade Online | 7-Oct-2015
Trans-Pacific Partnership (TPP) countries have agreed on language that will allow members to exclude tobacco control measures from the scope of investor-state dispute settlement.

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