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.

(April 2020)

First News | 10-Sep-2020
Australian mining firm Prairie Mining has launched international arbitration proceedings against Poland, claiming damages for the alleged hindering of the development of its two coal mines located in the country.
AFTINET | 3-Sep-2020
Australia, with its many Bilateral Investment Treaties and FTAs, contributes to a system of treaty shopping by mining companies looking to sue governments over unfavourable decisions.
Lexology | 3-Sep-2020
The Australian Federal Government has announced it is reviewing the bilateral investment treaties (BITs) to which Australia is a party.
Reuters | 1-Sep-2020
Barrick Gold Corp has lost a court challenge in Papua New Guinea over rights to a highlands gold mine and intends to appeal to the country’s Supreme Court.
Mining.com | 28-Aug-2020
Canada’s Barrick Gold said it would challenge the Papua New Guinea government alleged move to grant a 20-year lease for the Porgera gold mine to a state-backed firm.
Reuters | 10-Jul-2020
Canadian miner Barrick Gold Corp said it served a dispute notice to the Papua New Guinea government over the country’s refusal to extend a mining lease in the Porgera valley.
ShareCast | 2-Jul-2020
The claims had arisen out of certain measures taken by Poland, allegedly in breach of the Energy Charter Treaty and the Australia-Poland Bilateral Investment Treaty.
Scoop | 29-Jun-2020
The Transpacific Partnership Agreement involves investor - state dispute settlement clauses, which large companies may use ISDS to sue governments for actions they took to stop the spread of the virus.
Lexology | 10-Jun-2020
On 5 February 2020, Australia and Indonesia signed an exchange of letters agreeing to the termination of the Aus-Indo BIT and its sunset clause.
The Conversation | 23-Apr-2020
Global companies are positioning themselves to use little-known rules in trade agreements to claim millions of dollars in compensation for restrictions imposed during the pandemic.

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