The TPP11 negotiations: ISDS provisions are gone – almost

Written By: - Date published: 1:08 pm, November 12th, 2017 - 113 comments
Categories: david parker, Economy, Free Trade, International, labour, trade - Tags: , ,

The do we don’t we have a deal negotiations over TPP11 are set to continue over the next few months.  It appears that a lot of progress has been made in dealing with investor state dispute resolution procedures but the question will be has it been enough.

David Parker appeared on Q&A this morning and gave an outline on how the negotiations are going.  From Television New Zealand:

Foreign corporations would still be able to sue New Zealand’s government under principals agreed to by the government, but those circumstances have been considerably narrowed, Trade Minister David Parker says.

Mr Parker, is in Da Nang in Vietnam where the APEC summit is the venue for negotiations between 11 countries on the newly-renamed Comprehensive Progressive Trans Pacific Partnership (CPTPP) agreement.

He said New Zealand has been able to reach consensus on “four and a half out of five” of the main things the Labour government wanted from the TPP.

One of those issues, the Investor-State Dispute Settlement (ISDS) clauses, has caused concern, as it could allow foreign corporates to sue our government in a foreign court if they felt they had been disadvantaged by New Zealand law or changes to those laws.

One example would be a tobacco company potentially suing New Zealand for lost income if tobacco became illegal.

Mr Parker said consensus around a considerable narrowing of the ISDS clauses have now been achieved, including a “side-deal” with Australia which completely eliminates ISDS clauses between Australia and New Zealand, which makes up 80 per cent of potential CPTPP trade.

“We’ve effectively got 80 per cent out, we’ve got some bilateral negotiations outside of the text that are ongoing, that we haven’t yet concluded – but we’re still trying our best to conclude,” Mr Parker said.

However, speaking this morning to TVNZ 1’s Q+A programme, Mr Parker said the remaining 20 per cent of trade with the other 10 CPTPP countries did currently still include ISDS provisions, but only for unhappy investors to use New Zealand courts.

“As the text stood, if a big multinational was building a big infrastructure project in New Zealand under contract with the Government and they became dissatisfied and had a dispute, until the narrowing, they could have used these ISDS clauses to take that dispute to an international tribunal – they now no longer can,” Mr Parker said.

“If they’ve got a breach of a contract like that, they’ve got to sue the New Zealand government in the New Zealand courts – just like a New Zealand company would have to.”

Mr Parker also said that New Zealand will retain the power to modify its own legislation and governmental systems without fear of corporations suing them.

“If we changed the regulation relating to taxes or environment or labour laws or public health or did anything with our public schooling system or our public health system, no they could not [sue New Zealand]” but “there are some narrower areas where they could still make a complaint under these ISDS clauses,” Mr Parker said.

Thankfully in the future the days of ISDS clauses will be at an end, at least for this Government.  The Report quotes Parker as saying:

We have instructed our negotiators not to agree them [ISDS clauses] in future, but we haven’t been able to successfully remove them completely from this agreement.”

The report then confusingly suggests that Parker confirmed, possibly over optimistically, that the new deal satisfies the five conditions that the Government had set for itself.  The conditions are:

– It achieves meaningful gains in market access for farmers and supports the more than 620,000 New Zealanders whose jobs depend on exports. The CPTPP will also provide New Zealand for the first time with preferential market access into Japan, the world’s third-largest economy, as well as Canada, Mexico and Peru;

– It upholds the unique status of the Treaty of Waitangi;

– It preserves New Zealand’s right to regulate in the public interest. We have also retained the reciprocal agreement with Australia, which is the source of 80 per cent of our overseas investment from this new grouping, that ISDS clauses will not apply between our countries. We continue to seek similar agreements with the other countries in this new Agreement. In addition, the scope to make ISDS claims has also been narrowed;

– The Pharmac model continues to be protected. Further improvements now achieved include suspension of patent extensions which could have increased the cost of medicine to the government; and

– The ability to control the sale of New Zealand homes is being preserved by separate legislation in New Zealand.

So American and Australian corporations will not be able to sue New Zealand over trade matters except in our courts.  And New Zealand will be able to regulate in the national interest in many areas free of concern that a law suit may ensue.  But the “narrower areas where they could still make a complaint under these ISDS clauses” needs to be clarified and preferably deleted.

Now that the US is no longer involved, Canada is showing considerable reluctance and Australia is willing to do a side deal removing the ability of its corporations from attacking New Zealand under the ISDS provisions maybe New Zealand should go the full hog and insist that they be removed completely.

113 comments on “The TPP11 negotiations: ISDS provisions are gone – almost ”

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  1. Et Tu Brute 1
    12 November 2017 at 1:22 pm

    A lot of smoke and mirrors. 90% of what he claims is a gain was in the text already – probably just clarified for him. They’ve got to make the agreement appear better now so they can walk back on their previous statements. Tobacco was always out of the ISDS and the original agreement had carve outs on public health and the environment etc… Not saying it is a good deal, just this messaging is dodgy from Parker.

    • Enough is Enough 1.1
      12 November 2017 at 1:31 pm

      Yep – Parker was always in favour of TPP so I don’t really believe anything he has to say on this. It is all spin.

      I will wait to see Jane Kelsey’s analysis before giving Parker any credit here.

      • cleangreen 1.1.1
        12 November 2017 at 1:55 pm

        Enough is Enough,

        I agree 100% with the dis-belief in those changes Minister Parker talks about as there will always be “fish-hoooks in these agreements, that a government could not predict.

        OAB spells some out here,
        SOEs.
        Natural resources.
        Infrastructure.
        Intellectual Property.
        Financial instruments.

        And no doubt many many more.

        DH offers further evidence of fish hooks,
        “they can only sue our Govt on the same grounds an NZ investor can sue…. that needs clarifying IMO.”

        This Government tripped up on the first day in Parliament wirtth national threatening to veto the speakers elction to office, so how satisfied can we be to believe anything the government tries to sell us now????

        No we need very comprehensive deep analysis of all the new TPP 11 or whatever it is called now.

        I asked jacinda to take our very special lady Professor Jane Kelsey who knoows more about this issue than anyone else onto her team of negociators, but labour did not!!!!!

        So I have deep reservations about the way labour are conducting this issue now since labour said they would be a government of “inclussion”!!!! really?

        Prove this now Jacinda and co by placing Professor Jane Kelsey on your negociating team for expert advisory legal issues for our bloody sakes before you sign this thing and tie us into a 30yr hole of ISDS death.

        • srylands 1.1.1.1
          12 November 2017 at 2:46 pm

          I have doubts that Ms Kelsey would ever agree to the prerequisites for being on the negotiation team. Firstly, vetting by the NZSIS. Secondly, signing a non disclosure agreement that commits her to keeping secret all details of negotiations.

        • James 1.1.1.2
          12 November 2017 at 8:23 pm

          That’s got to be the funniest thing ever. you actually asked her to take Kelsey?

      • red-blooded 1.1.2
        12 November 2017 at 2:35 pm

        So Jane Kelsey is impartial in these matters, is she? Has she ever endorsed any free trade deal?

        I also have reservations about TPP and want to know more about this revived version, but I was reasonably reassured by Parker’s interview. And to be fair to him, he didn’t claim to have been entirely satisfied, just said that they had got 4 1/2 of their 5 concerns dealt with.

        As for NZ “insisting” on anything, what leverage do we have to insist on anything? We can negotiate, and it looks like we were lucky here, because others also had reservations and were happy to park the provisions that had just been added in to satisfy the US, and then we can sign or not sign, but we’re a small fish and we don’t get to demand or insist.

        • red-blooded 1.1.2.1
          12 November 2017 at 2:55 pm

          One thing I still want to know more about is the process agreed for ISDS. Parker says that corporates would have to use NZ courts if they wanted to bring a case, but would there be another (international) tribunal sitting at a last-appeal level? If so, it would be a but meaningless (and bloody expensive for the crown) to go through the NZ courts first. This is the kind of thing I’d still like to see clarified.

        • tracey 1.1.2.2
          12 November 2017 at 2:57 pm

          She is not impartial but her analysis contains more depth and reliance on evidence and research than most I have heard in support of TPP.

          I would expect a Labour Govt, like a National Govt to be speaking with a political view, that is talking up the gains and minimising or ignoring the losses.

          David Parker, like the Trade Minister before him is NOT impartial.

          • UncookedSelachimorpha 1.1.2.2.1
            12 November 2017 at 3:58 pm

            Agree. Her arguments seem factual and logical. I don’t think you need to have a history of supporting free trade deals, to have a valid viewpoint.

            • tracey 1.1.2.2.1.1
              12 November 2017 at 4:05 pm

              If someone like, say, Wayne Mapp, provided the same kind of analysis with support and evidence, I may well find myself a recruit to the TPP. He has the knowledge, the contacts and the interest. the biggest thing for me is going to be the release of the cost/benefit analysis so we can judge what “best for NZ” actually meant in both Nats and Labour’s minds.

              • KJT …
                12 November 2017 at 7:16 pm

                That is the problem. Wayne Mapp’s inability to provide evidence, shows there has never been a proper encompassing Cost/benefit analysis, of any of the ideological flatulence from Government since the 80’s.

        • Draco T Bastard 1.1.2.3
          12 November 2017 at 3:11 pm

          As for NZ “insisting” on anything, what leverage do we have to insist on anything?

          We have the power not to enter the agreement. We don’t have to be in the agreement. In fact, from what I can make out, we’d be better off if we weren’t.

          • tracey 1.1.2.3.1
            12 November 2017 at 4:06 pm

            Seemingly we got a trade deal with China before anyone else. The time and money expended on TPP1 -11 must be considerable

        • Incognito 1.1.2.4
          12 November 2017 at 4:20 pm

          So Jane Kelsey is impartial in these matters, is she? Has she ever endorsed any free trade deal?

          Nobody with the slightest professional interest in this can claim 100% impartiality. A much better question to ask would be whether Professor Kelsey is ideologically opposed to free trade per se and in such a way that it would preclude her from doing an in-depth critical analysis and drawing conclusions that are based on fact & merit that can be supported with evidence. Even if she can only draw inferences she should be able to provide compelling arguments. Do you think you know the answer to that question?

          In the end, I don’t think there is one right or wrong answer re. TTP-11 (CPTPP), just a best and well-educated guess based on the best information and knowledge (AKA evidence) that is currently available.

          This is in shrill contrast to the information vacuum created by our Government and the spin they are using to fill this hole with …

          • Draco T Bastard 1.1.2.4.1
            12 November 2017 at 7:04 pm

            A much better question to ask would be whether Professor Kelsey is ideologically opposed to free trade per se and in such a way that it would preclude her from doing an in-depth critical analysis and drawing conclusions that are based on fact & merit that can be supported with evidence.

            She’s already done as much and posted it.

            Do you think you know the answer to that question?

            What question?

            In the end, I don’t think there is one right or wrong answer re. TTP-11 (CPTPP), just a best and well-educated guess based on the best information and knowledge (AKA evidence) that is currently available.

            The best information presently available tells us that the present system of FTAs doesn’t do as advertised but the exact opposite thus the only thing that a government should do is drop out of them.

            • tracey 1.1.2.4.1.1
              12 November 2017 at 7:26 pm

              She may have an ideological view but she absolutely has supported her views with fact and evidence. If people like Mapp or other supporters did the same we would all be better off. But they dont. Quick to sling insults at Kelsey but slow to take the time she does to write evidence based submissions for us to consider

            • Incognito 1.1.2.4.1.2
              12 November 2017 at 9:06 pm

              What question?

              You’ve’ already answered it, obviously 😉

              The question [to red-blooded] is whether Kelsey is compromised so that she has got no (academic) integrity and credibility to do her job properly.

              PS As far as I can tell those links are to stuff that Kelsey posted in 2016, i.e. before Trump/USA pulled out!?

              • Draco T Bastard …
                12 November 2017 at 11:27 pm

                She posted a lot of stuff about the TPPA and how it doesn’t stack up. That link just seemed to have most of it but, yes, it would be from before the USA pulled out.

              • tracey …
                13 November 2017 at 8:26 am

                Why is she compromised? She has analysed, researched, written arguments with support that are firmly against entering this agreement. You do not have to agree with her, no one does. Any many do not but just because having compiled that information she marched to ensure her view is heard does not make her lacking credibility or academic integrity. I argue the opposite. She very public stands up and behind her assertions. She does not shrink from them. She holds them out to be knocked down, one by one by analysis, evidence and research. I was at the Fabian event she and Wayne attended. When he put forward a view she countered with reference to clauses, to evidence, to research. When she made a statement he replied with rhetoric. he had advance notice, he could have prepared in the same way she had. he chose to take a route other than specific clause reference, evidence, research and relied upon the power of his rhetoric to persuade.

                The Education Act states that University academics are to be the critic and conscience of society. I would suggest that those who sit on their hands for fear of rocking the boat or jeopardising their jobs are the ones we should poiint fingers at as having no academic credibility or integrity to do their jobs.

                “Jane Kelsey is one of New Zealand’s best-known critical commentators on issues of globalisation and neoliberalism. She has taught at the University of Auckland since 1979, specialising in socio-legal studies, law and policy and international economic regulation.

                Jane is active internationally as a researcher, analyst, adviser and media commentators on globalisation, especially the Trans-Pacific Partnership Agreement, trade in services, and investment agreements. She is an active member of a number of international coalitions of academics, trade unionists, NGOs and social movements working for social justice.

                A followup to her best-selling book on the neoliberal restructuring of New Zealand, ‘The New Zealand Experiment. A World Model for Structural Adjustment?’ will be published in 2015. Entitled ‘The FIRE Economy’, it examines the challenges of embedded neoliberalism in the context of financial crises, and was supported by a Marsden Fund research grant. Other recent books include ‘Service Whose Interests? The Political Economy of Trade in Services Agreements’ (Routledge Cavendish 2008), and the edited ‘No Ordinary Deal. Unmasking the Trans-Pacific Partnership Free Trade Agreement’ (ed) (Bridget Williams Books 2010), as well as many published articles.”

                Who better to test the prevailing view that all (any) free trade deals are good trade deals?

                As for her not having anything published since this last round of talks, she usually gets stuff up pretty quickly given she is shut out from information that others get (eg when USA was in 400 Corps got briefed or were invited to talk rounds)

                https://itsourfuture.org.nz/jane-kelsey-nz-joins-trend-countries-say-no-isds-must-hold-firm-tppa/ from 1 nov

                • Incognito …
                  13 November 2017 at 10:23 pm

                  Hi tracey,

                  Since your comment appears to be directed at one of my comments (@ 1.1.2.4.1.2?) it seems there might be a misunderstanding as you seem to think that I somehow doubt, question or deny & reject Jane Kelsey’s personal and/or professional integrity & credibility. Nothing could be further from the truth!

                  I have huge respect for Jane’s razor-sharp intellect that slices through a very complex issue such as TPP and for her stamina, perseverance and resilience. And for her bravery to take a (public) stand that takes a lot of guts. New Zealand needs more people of her calibre to stand up and speak out publically – these people exist but they tend to keep quiet for a number of reasons.

                  For the record, my question was addressed at red-blooded @ 1.1.2 who appeared to question Jane’s ability to do what she’s doing best: criticising and unpacking the TPP. I note that they have chosen not to respond …

              • tracey …
                13 November 2017 at 8:35 am

                “‘Bill English suggested this morning that the TPPA was “probably” still a good deal without the US. Seriously? The economic modelling the government relied on to sell the TPPA last year had zero credibility and failed to account for the costs. Take the US out of that equation and any attempt to pitch the agreement as having net benefits to New Zealand is risible.’”

                https://thestandard.org.nz/the-tpp11-negotiations-isds-provisions-are-gone-almost/#comment-1413470

    • Wayne 1.2
      12 November 2017 at 2:33 pm

      Good on Labour on doing TPP.

      But there was certainly a lot of spin by Parker this morning on Q & A on the gains that had been made. Virtually everything he was claiming had already been provided for in the ISDS clause.

      As for no future ISDS clauses, well they aren’t really a feature of bilateral trade agreements anyway.

      And he has not said that the NZ government would never agree to an international arbitration clause in a very big investment deal, for say a 30 year development licence of an oilfield.

      By that I mean something like the Maui concession. Normally such deals are drawn up in such a way that successive governments cannot increase licence fees and royalties (except by some agreed formula perhaps tied to the international oil price) or impose new taxes. Investors however have to accept the usual changes to employment law and environmental regulation that occur over the life of a project.

      • tracey 1.2.1
        12 November 2017 at 2:55 pm

        Best kept secret in analysis of TPP and subsequent… 80% of our gains are with Australia, with whom we already have CER. I was a little surprise Wayne, cos you and other TPP supporters have never pointed this out and have given the impression (maybe not intentionally) that 9 other countries were VERY crucial when in fact we only expect to get inroads against the whole deal, of 20% across 9 nations

        • Jan Rivers 1.2.1.1
          13 November 2017 at 8:45 am

          The point about the 80% of investment from TPPA countries coming from Australian (or about 1/2 of the total) is that it represents the stock (or current total) of existing investment and not the annual flows of inward investment which are changing rapidly even without the TPPA being in place.

          New flows can be volatile from year to year. For example according to a KPMG (thought leadership :-)) report that used overseas investment office data showed

          https://assets.kpmg.com/content/dam/kpmg/nz/pdf/November/KPMG-FDI-Thought-Leadership-Web.pdf

          for 2013-15 20% of new investment came from Singapore (a TPPA country) in 2015. It also showed that the flow of Australian FDI accounted for only 12% of the total (not just TPPA) investment in 2013-15 whereas other TPPA affected countries new flows were more than 36% of new (global into NZ not just from TPPA countries) investment

          China (9%) (included by Most favoured nation status)
          Canada 15%
          Singapore (8%).
          Japan’s was 4% ,
          other Asia 4% (includes Korea & other MFN status)
          Other 11% (some MFN status)
          &
          US 17%.

          is coming from countries that would leave NZ vulnerable to ISDS claims. These changes, which can only be expected to increase more rapidly over time, will open NZ to greater and greater ISDS risk. This is important – like a pet for Christmas the gov’t is signing the TPPA for 2030 and 2040 not for now!

          • The Chairman 1.2.1.1.1
            13 November 2017 at 9:58 am

            Dead right, Jan. The way Parker framed it (around current investment) was misleading. Investment from other TPP nations will grow once the deal commences.

            Parker was also called out by Laila Harre, who accused Parker of being misleading on TPP (CPTPP) gains (on Q&A yesterday).

            • Jan Rivers 1.2.1.1.1.1
              13 November 2017 at 10:51 pm

              Thanks.
              The figures I sourced were from a KPMG report containing only Overseas Investment reported data – so just the larger investments. I got daunted by the complexity of it. The Stats NZ information which was fuller is very technical and I’ve asked for help to interpret it. I’ve also read about another issue which is to do with primary and secondary investing countries. Partly this is tax haven country stuff – but I think it also relates to where the banking happens – so Australia may in fact be over-represented when the actual investor is in some other country and could perhaps still mount a claim.

      • tracey 1.2.2
        12 November 2017 at 3:01 pm

        Wayne you said a few days ago that we needed the ISDS clause because we could not trust courts in some nations? You have also said in your defence of ISDS clause (including at the Fabian event attended by you and Ms Kelsey) that ISDS are standard fair trade clauses. Now you are saying that that are not standard in bilateral deals. Our deals with China etc are bilateral.

        As for your comment about Parker spinning. You are not suggesting that is something on Labour Ministers do I hope. When you say “virtually” everything you must know what is new, so do tell.

        • Wayne 1.2.2.1
          12 November 2017 at 5:28 pm

          I made my comment because I don’t believe the ISDS clause will have been dramatically changed. But I have not seen the actual changes, any more than anyone else outside the negotiators.

          Perhaps there has been added some expanded explanatory statements to make it clearer that they don’t apply to normal regulatory stuff on health and safety, employment law and environmental regulation. Which was basically already in the TPP.

          As an example of typical changes, around us all single story houses that are being painted have full scaffolding. Adds about $3,000 to a normal house paint job, but will reduce fall accidents.

          • tracey 1.2.2.1.1
            12 November 2017 at 7:16 pm

            And this is why it would be great if when you made your statements about ISDS or any other clauses you quoted bits, or reffered to them etc. I have NO memory of you make these kibds of statements when people used different examples of potential rsons to sue us. I recall the last example you were given in discussion related tk the environment but you didnt counter with it already being covered.

            Giving us facts, research etc to back statements advances the conversation.

          • tracey 1.2.2.1.2
            12 November 2017 at 7:23 pm

            So when you said virtually everything was already there you didnt actually know?

          • tracey 1.2.2.1.3
            13 November 2017 at 12:37 pm

            You were right. I looked at the 2016 document from MFAT this morning and saw the Asutralian ISDS concession was already there, amongst other things. Why didn’t you direct us to it when you made your statement? Or to it when KJT and I ask you for cost/benefit analysis?

            Despite what some think I actually want to get to the bottom of stuff. I do read links that are posted but am wary of just taking people’s statements at face value. Apart from anything else my legal training is too ingrained to do so.

      • Draco T Bastard 1.2.3
        12 November 2017 at 3:18 pm

        As for no future ISDS clauses, well they aren’t really a feature of bilateral trade agreements anyway.

        Well, that would be another lie from you.

        ISDS clauses started off in bi-lateral trade agreements where one of the nations had limited rule of law. They’ve expanded into multi-lateral trade agreements with nations that have very good rule of law and where such clauses have no reason to be.

        https://en.wikipedia.org/wiki/Investor-state_dispute_settlement

        • tracey 1.2.3.1
          12 November 2017 at 3:32 pm

          Presumably once signed our Govt will release all the prior analysis showing cost/benefit analysis……. that is what a transparent govt will do.

        • Wayne 1.2.3.2
          12 November 2017 at 5:19 pm

          Draco,

          I really meant bilaterals between reasonably developed nations. For instance Australia, Singapore, South Korea. So far these tend to be the sort of bilateral that NZ has done. As far as I can recollect there is not in the China FTA, which would have the least independent courts of the nations mentioned above.

          • Draco T Bastard 1.2.3.2.1
            12 November 2017 at 5:32 pm

            I really meant bilaterals between reasonably developed nations.

            Which really don’t need ISDS provisions because they (usually) have a fairly solid Rule of Law. So, why was this incorporated in the TPPA and, IIRC, the NZ/Korea FTA?

            And I believe that the China FTA promises China Most Favoured Country Status which can be used to retroactively have it applied if China considers that the FTAs we have with other countries which does include an ISDS is better than what they got.

            • tracey 1.2.3.2.1.1
              12 November 2017 at 7:19 pm

              Apparently the US needed it cos, as Wayne put it last week, some countries have corrupt courts… nothing to do with the 400 corps who have been privvy to all tpp nuances since day one could secure leverage over countries cracking down on their product.

              • KJT …
                12 November 2017 at 9:24 pm

                Some countries. Especially poor third world countries, and cheap commodity exporters, like New Zealand, have to be bullied into making sure their laws favour the wealthy corporations, that are robbing them.

          • tracey 1.2.3.2.2
            12 November 2017 at 7:17 pm

            You have done a really poor job of making that clear given your knowledge and ability to articulate.

            • KJT 1.2.3.2.2.1
              12 November 2017 at 9:30 pm

              I wonder why?

              I think we have established that Wayne has no concrete evidence of the “benefits” of “free trade and Globalisation”.

              Surely he would have put up references by now.

              But, as he said “that is not the way we do policy in New Zealand”.

              • tracey …
                13 November 2017 at 8:38 am

                This is the document which ought to clarify that. It is prepared by MFAT for the Nat Govt. It would need to have been rewritten following the withdrawal of the USA. I cannot find an up-to-date one. Kelsey suggests that one of the main reasons NZ wanted to be in TPP was access to US markets. She suggests with that gone, the cost/benefit analysis would have changed (possibly dramatically?).

                http://www.tpp.mfat.govt.nz/assets/docs/TPP%20National%20Interest%20Analysis.pdf

                This document also shows that parker “misspoke” yesterday by suggesting, or allowing the usggestion, that he and his team had negotiated the Australia exemption to ISDS. This is why it would be so cool if people like Wayne would post this stuff, statements of belief + evidence.

                “There are several aspects of ISDS in TPP that are considered to provide sufficient mitigation to
                balance the advantages and disadvantages of ISDS as acceptable for the New Zealand Government.
                For example:
                 There are safeguards, reservations (non-conforming measures) and exceptions that ensure
                New Zealand retains the ability to regulate for public health, the environment and other
                important regulatory objectives.
                 A specific provision allows the Government to rule out ISDS challenges over tobacco control
                measures. The Government intends to exercise this provision.
                 The investment obligations in TPP have been drafted in a way that would impose a high
                burden of proof on investors to establish that a TPP government had breached obligations
                such as ‘expropriation’ or ‘minimum standard of treatment’.
                 Limiting the types of monetary awards and damages that can be made against the
                Government.
                 Provisions that mean hearings will be open to the public, and which allow tribunals to accept
                submissions from experts and the public.
                 A number of provisions that allow TPP governments to issue binding interpretations on ISDS
                tribunals.
                ISDS provisions would not apply between New Zealand and Australia. This means that threequarters
                of all FDI from TPP countries in New Zealand would not have recourse to ISDS under
                TPP.
                 There are a number of other mitigating features (outlined in detail in this NIA). ”

                Depending on the definition of “provisions” it is good that any ISDS hearing will be public and will accept public submissions. Expensive to appear if not held in NZ. BUT I couldn’t see quickly what “provisions” means in this respect. It suggests some exceptions?

                • Jan Rivers …
                  13 November 2017 at 9:02 am

                  There is no new one because it is prepared as part of the process of passing new treaties into place. The last one was done with a very one-eyed perspective and was a very poor quality document in a number of respects.

                  However the lack of ISDS between Australia and NZ was advanced in that original analysis in Jan 2016 (page 16) as a protection against ISDS cases and so I am surprised that it is being announced two years later as a new win when it was already guaranteed by the ‘closer economic relations agreement – ANCERTA.

                  I can’t help but feel the public are being manipulated.

                  I await someone in the MSM making this point but not holding my breath.

                  • tracey …
                    13 November 2017 at 9:34 am

                    BUT surely once it was known that the US was out, a prudent Trade Ministry would set about preparing one that showed the cost/benefit without the USA as a platform from which to continue negotiation? Or a version thereof?

                    That Parker pitched it in a way that made it seem like Labour had won this concession is a worry but not a surprise to me. That the media have not read any documentation on TPP1-11 surprises me even less.

                    Afterall a former Trade Minister who posts here has been repeatedly asked for a cost benefit analysis and could have link those questioning to the above document, but did not.

                    • Draco T Bastard …
                      13 November 2017 at 11:24 am

                      BUT surely once it was known that the US was out, a prudent Trade Ministry would set about preparing one that showed the cost/benefit without the USA as a platform from which to continue negotiation?

                      Yes, they would have. And a prudent government would have held off signing it until the new analysis had been done.

                      A better government than our last one would have widened the analysis to look at other side effects of that agreement.

                      That Parker pitched it in a way that made it seem like Labour had won this concession is a worry but not a surprise to me. That the media have not read any documentation on TPP1-11 surprises me even less.

                      QFT

                    • KJT …
                      14 November 2017 at 9:49 am

                      A “prudent trade ministry”?

                      Exactly.

                      However I don’t think they really want to know, something they have worked at for decades, is a zombie. Hard to face.

  2. One Anonymous Bloke 2
    12 November 2017 at 1:22 pm

    regulation relating to taxes or environment or labour laws or public health or did anything with our public schooling system or our public health system

    So what’s missing from that list?

    SOEs.
    Natural resources.
    Infrastructure.
    Intellectual Property.
    Financial instruments.

    And no doubt many many more.

    How narrow this vast open tundra is. I guess we’ll find out in due course.

  3. DH 3
    12 November 2017 at 1:38 pm

    That’s good work on the ISDS if true. Making them only able to sue in our own courts removes most of the issues I had with it. The corollary to that is they can only sue our Govt on the same grounds an NZ investor can sue…. that needs clarifying IMO.

    If this lot could get that concession so quickly and easily it casts doubts on the motives of National who agreed to the original deal which was so unfavorable to NZ.

    • Bill 3.1
      12 November 2017 at 2:26 pm

      So there is no ISDS with one country (Australia) that will, if things go to plan, account for less and less of NZs trade. Okay.

      Parker says the government can do what it wants with the public health system. But when that impinges on some foreign owned business interest of the private health sector, what then?

      New Zealand (as before) has the right to legislate in the public interest. But who decides what’s in the public interest and what’s not?

      620 000 jobs depend on exports? Why have we created such a stupid scenario and why would we want to drive that dependency deeper?

      In short. When Parker says “We’re just committed to standing up for what’s best for NZ” (in the audio of the link), just what is this NZ he’s talking about?

      Is it the same thing we think of or sense when we use the term? I think not.

      His New Zealand is nothing much beyond economic spread sheet. Which, to be fair, if he’s being true to Liberal ideology, is all NZ need be – a spread sheet from which all good things naturally flow.

      • DH 3.1.1
        12 November 2017 at 3:01 pm

        Yeah it comes back to what I said about them only being able to sue on the same grounds an NZ investor can sue Bill.

        The Crown has sovereign power over NZ citizens so it would follow that overseas investors would be subject to the same conditions here if they’re not being given any favorable treatment in NZ courts under the new format. If…

        I’m also not making a lot of sense though. If they can only do what they’re already able to do then what is ISDS?

        • Bill 3.1.1.1
          12 November 2017 at 3:34 pm

          Only Australia has foregone the ISDS process. Individuals (no matter their nationality) never had access to the ISDS process.

          That aside, I get the impression that Parker is being very careful in how he’s couching stuff.

      • tracey 3.1.2
        12 November 2017 at 3:02 pm

        Have I misunderstood cos I read Parker as saying 80% of NZ’s gains from this agreement are with Australia?

        • Bill 3.1.2.1
          12 November 2017 at 3:14 pm

          80% of NZ’s trade is with Australia. NZ and Australia have agreed to forego use of the ISDS when dealing with one another. That’s it.

          • tracey 3.1.2.1.1
            12 November 2017 at 3:50 pm

            Ah, I see. A nation that has no history of suing us (or others?) in order to stop us implementing health and other policies is not going to be able to sue us. …

        • DH 3.1.2.2
          12 November 2017 at 3:17 pm

          I don’t think so. My reading of it is Parker is saying that 80% of the expected investment from TPP members will be from Australia and since they negotiated a side deal with Aus that had no ISDS provisions 80% of TPP investment won’t be subject to ISDS clauses.

          IMO it’s fluff and unworthy of him.

      • Et Tu Brute 3.1.3
        12 November 2017 at 3:20 pm

        Naturally I can only go off the previous agreement text, and not what’s been changed post-Trump. But the public interest agreement had a number of conditions. From memory:
        a. be in good faith.
        b. give time for public feedback before passing the law.
        c. once the law is passed, give a clear day in the future for it to start.
        New Zealand won’t have a problem with these conditions. Sometimes I think we read things that are someone else’s mail. Essentially it is committing all member countries to clear and open legislative practice, which is only a good thing. In terms of public public, companies can only launch a claim if a) no notice was given, b) there was no ability to give feedback to the government, c) it was rushed through. Now some things could clash with this if done under urgency, but we should be mindful anyway that legislation under urgency isn’t best practice anyway.

        • tracey 3.1.3.1
          12 November 2017 at 3:54 pm

          BUT you could issue proceedings, or threaten to issue proceedings ont he basis that has not happened and suck up some chunk of taxpayer change defending it… or the potential cost of defending makes n executive take that into account behind closed doors when deciding what policy/legislation to float? let’s be honest the kinds of companies that would try to sue would have direct access to the 9th floor anyway? Just thinking out loud.

      • Draco T Bastard 3.1.4
        12 November 2017 at 3:25 pm

        620 000 jobs depend on exports? Why have we created such a stupid scenario and why would we want to drive that dependency deeper?

        Because our productivity is so high that, even if we produced everything we needed, there still wouldn’t be enough work for everyone of working age to work 40 hour weeks.

        In other words, it’s a way to hide the failure of the present system and blame the victims of it.

        When Parker says “We’re just committed to standing up for what’s best for NZ” (in the audio of the link), just what is this NZ he’s talking about?

        He’s either lying or really that stupid. Free-trade is probably a good idea but FTAs don’t provide that. If they did then they wouldn’t need any ISDS clauses to force government to consider foreign shareholders.

        • Bill 3.1.4.1
          12 November 2017 at 3:42 pm

          Because our productivity is so high that, even if we produced everything we needed, there still wouldn’t be enough work for everyone of working age to work 40 hour weeks.

          Ah! So we’d have less time spent in jobs, more time spent working on other fronts or spent with family, friends, general whatever…and have more than enough ‘creature comforts’ to go round.

          I’m thinking that was the fear expressed by the elite and powerful just before we all got sold on “fashion” – this year’s, next year’s last best thing – and other forms of inbuilt obsolescence 😉

          • Draco T Bastard 3.1.4.1.1
            12 November 2017 at 5:15 pm

            Ah! So we’d have less time spent in jobs, more time spent working on other fronts or spent with family, friends, general whatever…

            And politics, IIRC, was the actual stated fear.

            In other words, people with more time on their hands would take an interest in politics and vote. The rich and the political class didn’t want that.

      • Wayne 3.1.5
        12 November 2017 at 5:40 pm

        Bill

        NZ has always had that scenario. For 150 years we have sent our primary produce overseas and used the money to import stuff that we could not possibly make.

        For a fully self contained advanced economy there has to be about 500 million people. For instance North America or Europe or East Asia. But none of these places are fully self sufficient. They trade with each other in part for choice and in part because one or other place produces things more efficiently, or is better in a specific category.

        For instance the best cars are German. For the most advanced and complex things such as large civil aircraft there are only two global manufacturers. East Asia (including Russia) does not produce such aircraft, though Japan produces a large part of the Boeing 787.

        So what hope does NZ have of being self sufficient in the modern world?

        • tracey 3.1.5.1
          12 November 2017 at 7:20 pm

          Best cars are Toyota.

          • One Anonymous Bloke 3.1.5.1.1
            12 November 2017 at 7:25 pm

            Wayne means BMW make the best car he ever travelled in as Minister and/or law commissioner, apart from ‘private’ meetings with people from Cabinet Club.

        • Bill 3.1.5.2
          12 November 2017 at 7:42 pm

          NZ has always been export orientated? Really!?

          I mean, you do understand the difference between exporting stuff and relying – like a religious obsession – on exports and “niche markets” and “comparative advantage” for economic growth . Of course you do!

          The west had to force that shit on the global south via SAPs. I’m sure you know that too. And then idiotic western politicians caved to business elites in the 70s and 80s and, essentially applied SAPs on their own populations (ie, 19thC Liberalism re-packaged and shipped out as neo-liberalism .) As you know.

          And I’ve no idea where you get the figure of 500 million from.

          Nor where you get the idea (implied) that I’m anti-trade…or the notion that I’ve argued “self sufficiency”.

          • Wayne 3.1.5.2.1
            13 November 2017 at 8:18 am

            The figure of 500 million people comes from looking at the great economic clusters in the world. The three regions (North America, Europe and East Asia) are the only 3 places where modern economies make virtually everything they need within that region.

            Maybe they could be smaller, but not much. For instance Japan and Russia do not make everything. Neither make large commercial aircraft and in particular large fan engines for 787 size aircraft. And Russia, when it was the Soviet Union, could not produce anything like the variety and quality of goods as the west. In part because it was too small, but also because it was communist, without a free market driven by consumer choice.

            Australia with over 25 million people does not nearly manufacture everything. In fact they have stopped making cars – not competitive or good enough.

            So NZ relies on exports to buy just about all advanced goods. And that has been true since 1820!

            • Bill 3.1.5.2.1.1
              13 November 2017 at 12:50 pm

              Christ on a bike Wayne!

              So okay, if you live in Belgium and want pepper, then your going to have to buy imported stuff. But that’s got nothing to do with an ideology that promotes export orientated production and manufacturing above all else – to the extent that societies, their infrastructures and populations can be seen as expendable ‘add-ons’ to be trashed for the sake of satisfying or perfecting the reification of said ideological nonsense.

    • One Anonymous Bloke 3.2
      12 November 2017 at 2:29 pm

      Making them only able to sue in our own courts removes most of the issues I had with it.

      Depends on what grounds they can go to the kangaroo courts instead. I have no problem with companies having recourse to the law, but “there are some narrower areas where they could still make a complaint under these ISDS clauses…”

      “Narrower” like for example legislating genuine public services back into existence?

  4. ankerawshark 4
    12 November 2017 at 1:46 pm

    100% in agreement DH

  5. Bill 5
    12 November 2017 at 2:01 pm

    Bottom line is that an ideological obsession on export orientated economic activity ends badly.

    Remember back in ’80 whatever, when this export ed growth crap started to bite?

    Where are the domestic shoe manufacturers now? Or the clothes manufacturers? What about the appliance manufacturers?

    So companies big enough to re-locate off-shore, re-located off-shore, and the others went under given the comparative disadvantage occasioned by them paying higher wages, or offering better conditions, or making higher quality products….

    And the working class is no longer working. Highly paid secure employment being replaced by casual insecure and low paid shit isn’t “working” – according to a number of definitions you might want to apply to the term.

    So the increasingly poor working class got to buy cheap shit from some parallel importer (or whatever) that was made under conditions generations fought to overcome. (And said purchase quite literally, and increasingly, falls apart in ‘no time’ as manufacturers seek advantage by using cheaper raw materials in a more ‘level playing field’ of wages and conditions.

    Meanwhile, governments have to top up sinking incomes from reduced tax takes via employer subsidies (eg – wff), that in turn chain workers to, often, some crap service sector job, because that’s more or less all that’s left now, while “the dole” demands you hone your dishonesty in a bid to survive….

    And it’s all deliberately underpinned and driven by such things as optimum unemployment rates (flexible work force) and fiscal fucking responsibility (austerity).

    No ISDS with Australia? That’s good? Export markets? Sell stuff to Japan? Fuck off!

    People are paying huge interest rates on cars they can’t afford but are forced to buy because they’ve got to live in something. Public services are tanking (have tanked). People are dying and far too many are suffering – and all precisely because of this ideological bullshit that NZ Labour blindly promotes as a route to a “more caring” NZ.

  6. millsy 6
    12 November 2017 at 2:03 pm

    The government didn’t really have much of a choice here. This was more or less done under duress.

    • The Chairman 6.1
      13 November 2017 at 10:54 am

      They had (and still have) the choice of walking away from it if they couldn’t/can’t fully secure what they wanted.

  7. Richard Christie 7
    12 November 2017 at 2:03 pm

    According to J Kelsey, some of the most toxic ISDS provisions haven’t been removed, only suspended.

    I.e. our cup of ISDS poison has merely been postponed.

    • tracey 7.1
      12 November 2017 at 3:05 pm

      According to Wayne “virtually everything” was already there, so whatever Kelsey’s analysis of ISDS before Parker’s announcement remains the case.

      I had hoped the labour Govt would stick to its chest beating 5 bottom lines… maybe they have through smoke and mirrors.

  8. The decrypter 8
    12 November 2017 at 2:18 pm

    Now I’m all at sea -don’t know whether to be content or depressed. Possibly a good sign so far is a lack of trolls poking their snouts in and grunting with glee.

  9. The decrypter 9
    12 November 2017 at 2:45 pm

    “Weh mir,-as instructed.

  10. Whispering Kate 10
    12 November 2017 at 4:37 pm

    I have this feeling that the 3 way coalition is going to get a bit rocky. The bed will be too small for the 3 of them, I cannot see the Greens being very happy about being signed up for this deal. Winston is only known to himself. To me I think this deal was done and signed long before they went over to nut out the last of the things bothering them. How many Labour voters were and are still dead against this TPPA deal and how many will feel betrayed by Jacinda Adhern going ahead with it anyway. Just more of the same, I am glad I voted for the Greens as I didn’t and don’t trust Labour as far as I could kick them.

    • tracey 10.1
      12 November 2017 at 4:57 pm

      I suspect the Greens knew this was coming. Like you I voted Green because I want proof the Labour Party has changed before I consider going back there. I know many who voted for them believing they were going to return to closer to Mickey Savage days than they have been. I also know a few have been sending me WTF messages over TPP. I am not saying I told you so, cos I love them… but I have more holes in my tongue than a colander! 😉

    • bwaghorn 10.2
      12 November 2017 at 5:12 pm

      most non green voters wear big boy /girl pants and know that you have to be part of the world , not living in wish land

      • Draco T Bastard 10.2.1
        12 November 2017 at 5:20 pm

        Apparently, your big boys/girls think that they should also be lied to and screwed over at the behest of the rich as well.

        BTW, The Greens are all about having fair trade and engaging with the world in a holistic fashion. Which would mean that your assertion was either from ignorance or that you were lying.

      • tracey 10.2.2
        12 November 2017 at 7:21 pm

        Did you vote Green? If yes, on what basis do you purport to speak for all Green voters

    • ankerawshark 10.3
      12 November 2017 at 7:15 pm

      I note the Greens are not stating that they are unhappy about where Ardern and Parker have got with the TTP…………and I don’t think they will. The will most likely be pragmatic and suck it up. They will know that there are too many other gains they will get from going along with what has been agreed.

      I could be wrong. But if I am not, that means the Greens are being pragmatic the same way Labour is.

      • Draco T Bastard 10.3.1
        12 November 2017 at 8:05 pm

        There is nothing pragmatic (in the actual meaning of the word) about the TPPA.

      • Incognito 10.3.2
        12 November 2017 at 8:30 pm

        The will most likely be pragmatic and suck it up.

        They may be polite, diplomatic, or stoic, etc.

        I could be wrong. But if I am not, that means the Greens are being pragmatic the same way Labour is.

        I hope and think you’re wrong 😉

        The word “pragmatic” is possibly the most abused and worst understood word in NZ politics. It invokes an illusionary positive quality of conducting politics and decision-making that’s often spoken within the same breath as logical, rational, and common sense. Its function & value are largely rhetorical.

      • The Chairman 10.3.3
        13 November 2017 at 10:32 am

        “I note the Greens are not stating that they are unhappy about where Ardern and Parker have got with the TTP…………and I don’t think they will. The will most likely be pragmatic and suck it up.”

        Seeing as the Greens are in a position (outside of Cabinet) to speak up, not speaking up could come back to haunt them come next election.

        A number are expecting them too (speak up) thus will be disappointed at best.

      • tracey 10.3.4
        13 November 2017 at 11:59 am

        Except Green party is not at APEC, not in a negotiating team, not in cabinet. In themeantime Peters, representing NZ and those who voted for him was at APEC and has not said a word despite being against TPP (NZF anyway)

    • Louie 10.4
      13 November 2017 at 1:03 am

      betrayed? Labour always said they were against the TPP in its “current form” and would renegotiate it. Isn’t that what they are doing?

      • The Chairman 10.4.1
        13 November 2017 at 10:37 am

        Yes. But they also had bottom lines that haven’t been fully met. Hence, there will be feelings of betrayal.

        • Louie 10.4.1.1
          13 November 2017 at 11:49 am

          But isn’t it something like 4.5 out of 5 that have been met? Is there a possibility that more negotiations will come? It hasn’t been signed yet.

          • tracey 10.4.1.1.1
            13 November 2017 at 12:03 pm

            Are the 4.5 amongst these Louie?

            “For example:
             There are safeguards, reservations (non-conforming measures) and exceptions that ensure New Zealand retains the ability to regulate for public health, the environment and other important regulatory objectives.
             A specific provision allows the Government to rule out ISDS challenges over tobacco control measures. The Government intends to exercise this provision.
             The investment obligations in TPP have been drafted in a way that would impose a high burden of proof on investors to establish that a TPP government had breached obligations such as ‘expropriation’ or ‘minimum standard of treatment’.
             Limiting the types of monetary awards and damages that can be made against the Government.
             Provisions that mean hearings will be open to the public, and which allow tribunals to accept submissions from experts and the public.
             A number of provisions that allow TPP governments to issue binding interpretations on ISDS tribunals.
             ISDS provisions would not apply between New Zealand and Australia. This means that threequarters of all FDI from TPP countries in New Zealand would not have recourse to ISDS under TPP.
             There are a number of other mitigating features

          • The Chairman 10.4.1.1.2
            13 November 2017 at 12:59 pm

            “But isn’t it something like 4.5 out of 5 that have been met?”

            That’s how they are spinning it. Yet, Parker is claiming gains that were already in the deal.

            Moreover, 4 and a half out of 5 wasn’t what they campaigned on, thus the feeling of betrayal.

            Additionally, they reached an agreement, though Canada failed to show, thus it wasn’t signed.

            While there may be more negotiations to come, that is nether here nor there at this stage as people feel betrayed now.

            Labour have gone from potentially walking away from the deal (if they didn’t secure what they wanted) to now (after being elected) being reported as being an active proponent of the deal.

            So course, there is a feeling of betrayal.

            • Louie 10.4.1.1.2.1
              13 November 2017 at 1:21 pm

              But Labour never said they would walk away.

              • The Chairman …
                13 November 2017 at 1:28 pm

                Are you implying that although they had bottom lines, Labour were misleading the NZ public from the get go and never had any intention of walking away?

                • Louie …
                  13 November 2017 at 1:33 pm

                  No. All Im just saying is that Labour never said they would walk away from it and always maintained the intention of renegotiating it.

                  • tracey …
                    13 November 2017 at 2:09 pm

                    So what did bottom line mean? I took it to mean if those 5 things were not conceded they would not sign. Can you look at the list I posted above and tell me if it ticks off the 4.5 things you say have been ticked off now?

                  • The Chairman …
                    13 November 2017 at 2:15 pm

                    While their main intention was to renegotiate, if they failed to successfully renegotiate the deal, it implied they would walk away.

    • The Chairman 10.5
      13 November 2017 at 10:18 am

      @ Whispering Kate

      The Council of Trade Unions (CTU) is still opposed to the Trans Pacific Partnership, despite the government claiming significant wins at the talks at APEC.

      http://www.radionz.co.nz/news/political/343643/tpp-critics-unmoved-by-new-negotiation-wins

      Yes, a number will feel betrayed (once again) by Labour.

      Like you I also voted Green. Yet, like their silence on core benefit increases since after the election, I’ve yet to hear them speak out against Labour’s TPP positioning.

      Have you heard anything from them (the Greens)?

  11. J 11
    12 November 2017 at 5:17 pm

    I would request the new government to seek Jane Kelsey’s advice on the progressive tpp, or whatever it is now called, if they want both sides of the issue.

    That is what ‘listening to all New Zealanders’ is about.

    ‘All New Zealanders’ includes business interests as well as individuals on a benefit, on low wages, homemakers on no personal income, unions, monied interests.

    That is what we need to remember.

    More importantly, however, is that the government MUST heed the FACT that lobbyists are essentially business and monied interests so government MPs have to get off their backsides and seek out those that don’t have the time or money to lobby them.

    As an individual, Professor Jane Kelsey speaks for so many of us, and MUST be taken into the government’s confidence, even if it causes them to rethink their plans.

    BUT,

    what we also need to remember is that the creatures that now slime over the benches of opposition have a lot of money and a lot of external monied interests seeking to wreak havoc on anything that the new coalition decides that may disadvantage those creatures in some way.

    So, be careful what you wish for. It may be another greedy national party getting back into power on your backs.

  12. Sparky 12
    12 November 2017 at 5:41 pm

    No I do not believe it will be enough based on everything I have read and anecdotal evidence from other similar deals such as NAFTA. The only thing that will be enough is to drive a stake through this monster of a trade deals black heart and walk away.

    • tracey 12.1
      12 November 2017 at 7:22 pm

      Well it is going through Select Committee and apparently public submissions.

      • J 12.1.1
        12 November 2017 at 7:49 pm

        Xlnt news
        Something the nats ignored. I’m looking 4wd to seeing the nats filibustering on that.

      • Molly 12.1.2
        12 November 2017 at 8:33 pm

        Attended the previous submissions and watched David Shearer almost yawn during a submission about ISDS. Then watched the whole committee perk up during an out and out presentation full of nothing but hot air from the NZ Business Forum (or a similarly named association).

        I have little faith in sincere consultation when the words they have used so far are intentionally vague.

  13. RedBaronCV 13
    12 November 2017 at 7:56 pm

    Okay so now we are in a position to repeal all that legislation that was shoved through parliament by Nact after the last TPP round they were in, despite the USA falling out, legislation that was rumoured to be written by the US??

    If we are not in a position to repeal all that then maybe nothing much has actually changed.

    Parker – looking to be the Tony Blair of NZ? – a third way labourite.

    And what exactly are the trade advantages???

  14. tracey 14
    13 November 2017 at 12:01 pm

    ““We need a decent free trade deal with Japan. New Zealand First is all for free trade deals that benefit us, but going through the TPPA is not the best approach.

    “By all means negotiate with Japan, but not with rose-tinted glasses so you can tick off a deal, but come away the loser.

    “The TPPA was not a free trade deal, but an international corporate protection racket, covering a wide range of laws which challenged our national sovereignty, giving legal preference in a court not of New Zealand’s choosing. That’s just to highlight just some of its defects,” says Mr Peters.”

    http://www.nzfirst.org.nz/nz_foolish_to_sign_up_to_dead_tppa_with_japan

  15. Philg 15
    14 November 2017 at 6:57 am

    Yes folks, the tppa is gone, almost! Our pregnancy has gone almost. Lol. Parker is over acting and we are repeatedly told by the new guv that ‘it’s not perfect’. Fresh gloss on same poo.

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