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 Economist | 13-Aug-2016
Three years ago, the government of Togo received a letter from Philip Morris International outlining how plain packaging would violate binding global and regional agreements.
Loading Docs | 5-Aug-2016
Water for Gold tells the alarming story of how international trade law is leading us to trade our most basic rights to clean, safe water for access to gold.
East Asia Forum | 4-Jul-2016
Public debate over how best to manage the interests of foreign investors and host states has resurfaced in Australia.
Sidney Morning Herald | 27-Jun-2016
Australian governments of late seem only to listen to the din of money as though that equates with national interest.
NZ Herald | 13-Jun-2016
Secretive negotiations for the China-led Regional Comprehensive Economic Partnership or RCEP began in November 2012. The 13th round is being held at SkyCity in Auckland.
The Guardian | 8-Jun-2016
Provision allows firms to sue in international tribunal if laws introduced or changed that hurt their interests.
The Guardian | 8-Jun-2016
ALP says it will try to change three major agreements that allow corporations to sue if they think a government has damaged their interests
ICTSD | 26-May-2016
The tribunal considered that the main and determinative reason for the 2011 restructuring was in order for the tobacco giant to bring a legal claim under the BIT Treaty, using a Hong Kong-based entity.
Health Canal | 19-May-2016
“Despite the losses and defeats, tobacco companies will keep coming back for more. They will fight on regardless in order to delay and disrupt the rollout of the World Health Organization’s best-practice tobacco control measures,”
Sidney Morning Herald | 11-Apr-2016
US mining company Nucoil is using a free trade agreement to put pressure on the Australian government to pay compensation over cancelled licences.

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