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)

| 21-Nov-2011
The Federal Government’s plain packaging laws for cigarettes have now passed both houses of Parliament but are facing their first legal challenge.
The Conversation | 25-Aug-2011
Legislation requiring tobacco products to be in plain packaging was passed by Australia’s House of Representatives last night. This is the first such measure in the world to become law.
Info Justice | 4-Aug-2011
Philip Morris asserts that fair and equitable treatment includes a right to a “stable and predictable regulatory framework” as well as rights under treaties in addition to customary international law.
| 28-Jun-2011
Tobacco giant Philip Morris suing the Australian government for introducing plain packaging laws for tobacco should send shockwaves through this country as it seeks a free trade deal involving the US, says an academic critic of the deal.
| 27-Jun-2011
Prime Minister Julia Gillard says she won’t be intimidated by big tobacco after Philip Morris launched legal action to try to force the government to back down on introducing plain packaging for cigarettes.
Radio NZ | 7-Feb-2011
A top United States trade official says New Zealand is ready to accept investor-state disputes in the nine-country TransPacific Partnership trade agreement (TPP).
| 16-Jan-2011
Big tobacco is hoping a new multilateral free trade agreement will enable it to sue the Federal Government if Australia introduces plain packaging for cigarettes in mid-2012 as planned.
Scoop | 28-Apr-2008
While media coverage of the China-NZ Free Trade Agreement has focused almost entirely on the possible dollar gains, scant attention has been paid to the equally valid exposure of New Zealand to compensation claims — should any NZ government be so bold in future as to pass laws or regulations that a foreign investor feels will impact on profitability.

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