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)

Bangkok Post | 1-Apr-2019
The Australian mining company Kingsgate Consolidated, armed with a US$55-million insurance payout for the closure of its gold mine in Thailand, says it now has the financial means to pursue its arbitration case against the Thai government.
Lexology | 29-Mar-2019
On 26 March 2019, Australia and Hong Kong signed the Australia-Hong Kong Free Trade Agreement and its associated investment agreement.
The Conversation | 27-Mar-2019
Philip Morris, a US company, moved ownership of its Australian operations to Hong Kong to take advantage of ISDS in an Australia-Hong Kong investment treaty.
AFTINET | 27-Mar-2019
The Australia-Hong Kong Free Trade Agreement and separate Investment Agreement signed still give special rights to foreign investors to bypass national courts and sue governments for millions of dollars in international tribunals
Scoop | 25-Mar-2019
Australia’s costs for tobacco case it won show why NZ must get rid of ISDS now.
AFTINET | 22-Mar-2019
It has taken a second FOI case and another two years to reveal that Australian taxpayers were only awarded half of the costs of defending Australia’s tobacco plain packaging laws against tobacco giant Philip Morris in March 2017.
Churchill Mining | 20-Mar-2019
The annulment committee has dismissed Churchill’s application for annulment of the award for the dispute arising out of the revocation of the mining licenses that made up the East Kutai Coal Project in East Kalimantan.
Australian Mining | 19-Mar-2019
Kingsgate has been fighting the Thai Government and its insurers over the cancelled Chatree goldmine after it was denied renewal of its metallurgical licence.
The Conversation | 6-Mar-2019
Indonesia – Australia CEPA signed without prior released text to assess its costs and benefits.

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