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)

The Hill | 5-May-2017
The lack of a defined procedure under the AUSFTA is extremely prejudicial to U.S. companies and banks: chairman of APR Energy
Sidney Morning Herald | 2-May-2017
US mining company Nucoil is using a free trade agreement to put pressure on the Australian government to pay compensation over cancelled licences.
TNS | 24-Apr-2017
The final amount of damages payable to TCC in the Reko Diq case may carry serious implications for future development projects in Balochistan.
Stock Market Wire | 20-Apr-2017
Churchill filed an annulment application after an ICSID Tribunal granted Indonesia’s application to dismiss the company’s claims for damages following the revocation of mining licences.
The Australian | 7-Apr-2017
The Thai government says it is ready to hold talks with Australian goldmining company, Kingsgate Consolidated, over the closure of its Thai mining operations last year.
Mining Weekly | 4-Apr-2017
Aim-listed Churchill Mining has lodged an application to have the ICSID Tribunal’s decision to dismiss claims for damages against Indonesia
Courrier Mail | 3-Apr-2017
Australian goldminer Kingsgate Consolidated is banking on free trade agreement provisions to press the Thai government to open talks over its 2016 decision to shut all gold mines.
Stock Market Wire | 31-Mar-2017
Churchill Mining says it continues to pursue its $1.315bn claim against the Republic of Indonesia in relation to the revocation of its licenses at the East Kutai Coal Project.
Manila Times | 30-Mar-2017
A giant Australian-Canadian gold mining group, OceanaGold, has been ordered to pay interest on $8 million in legal costs awarded to El Salvador over a lawsuit it lost.
The News | 23-Mar-2017
The ICSID tribunal rejected Pakistan’s final defence against liability, and confirmed that Pakistan had violated several provisions of its bilateral investment treaty with Australia.

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