To go or woe with the WTO?

Remove

In our latest Trade Working blog Stephen Jacobi and Stephanie Honey look at prospects for #WTO #MC13.

read more

TPP Investor state – keeping governments honest

by | Mar 2, 2015 | Uncategorized

Remove

Those concerned about investor rights in trade agreements might well reflect on the appropriateness of the New Zealand Super Fund seeking to sue the Government of Portugal about retrospective regulations it has made to protect the interests of a government-owned bank.

Of course this is not the same as investor-state dispute settlement (ISDS) through UN-mandated arbitration as is provided for already in New Zealand’s FTAs with China, ASEAN and Korea and is proposed in TPP. The Super Fund is seeking redress through domestic courts, as a major Japanese corporation did recently (unsuccessfully) in respect of New Zealand’s earthquake compensation legislation. In the case of Portugal and New Zealand it is to be hoped that the courts in question will decide impartially and without undue influence of governments. Such independence of the judiciary is not always the case especially in developing countries which are often out to attract foreign investors. That is why ISDS is important, particularly in an age where trade is giving way to investment – not unduly to restrict government actions but to ensure compensation to foreign companies is made available when governments expropriate property rights.

The question remains whether sovereign governments should be able to be sued at all? Surely the answer is yes. In fact principles of independent arbitration and compensation are not all that foreign to many jurisdictions, including here in New Zealand.

As it is, New Zealand’s existing FTAs and we expect TPP also have safeguards to lessen the risk of adventuresome litigation and to prevent the ‘freezing out’ of government action. No government should be prevented from taking action to protect public health, the environment or in New Zealand’s case, the Treaty of Waitangi. The grounds under which ISDS can be taken need to be carefully prescribed and negotiators need to be very aware of the risks to legitimate government policy making in this area.

Those opposed to TPP claim ISDS provides “for foreign investors to sue our government in overseas tribunals if their profits are cut by legitimate government actions”. No New Zealand Government would be foolish enough to sign up to something so ill-defined and open-ended, without necessary protections. Meantime go ask the Super Fund if the Government of Portugal can be trusted at all times to do the right thing by foreign investors.

This post has been written by Stephen Jacobi, Executive Director of the New Zealand International Business Forum (www.nzibf.co.nz)

 

REGISTER WITH TRADE WORKS

Register to stay up to date with latest news, as well as saving and discussing articles you’re interested in.

 

Remove

 

Latest News

To go or woe with the WTO?

We’ve been here before with the World Trade Organisation (WTO).   The global trade body’s 13th Ministerial meeting (“MC13”) opens in Abu Dhabi on Monday 26 February, with Trade Minister McClay serving as Vice-Chair.  In recent weeks diplomats, trade...

SUBMISSION TO THE MINISTRY OF FOREIGN AFFAIRS AND TRADE

GENERAL REVIEW OF THE COMPREHENSIVE AND PROGRESSIVE AGREEMENT FOR TRANS- PACIFIC PARTNERSHIP (CPTPP) DECEMBER 2023 Summary This submission is made on behalf of the New Zealand International Business Forum (NZIBF). As individual NZIBF Members may make their own...

2023 – Steps forward and back

Trade liberalisation moved forward and backward in 2023.  Some notable gains have been achieved for New Zealand, but war, geo-political rivalry and global inflation continue to depress global markets. While the pandemic continued to lurk in the shadows, 2023 was the...

NZIBF 2023 Chair Report

I am pleased to present my third report on the activities and achievements of the NZ International Business Forum (NZIBF) for 2023-24, our sixteenth year of operations.  I am grateful to all Members and to our executive team for your continuing support. As I...

Of APEC, CPTPP and IPEF

While New Zealand was sorting out its new Government, the alphabet soup which is trade got a good stirring in San Francisco.  This was APEC Leaders’ week, the annual gathering of Leaders, Ministers, business people and other stakeholders from the 21 economies of...