The fate of the TPPA seems to waver day by day.
In an interesting development for NZ yesterday Tim Grossing Grosser (who has joined the PM as an international laughing stock) admitted that the TPPA will include the most controversial of provisions:
At 5 mins, Groser adamently states that the TPPA will allow corporates to sue the NZ Govt http://t.co/r8pEBWp65n
— Helen Kelly (@helenkellyUnion) May 20, 2015
These are called “investor-state dispute settlements” / ISDS provisions. They are complex and controversial, depending on the details they can work for NZ or they can surrender our sovereignty. David Parker has an excellent summary here:
- ISDS provisions can help protect New Zealand companies against unjust treatment in overseas countries where governments do not treat investors or exporters fairly, especially where Courts are not free from corruption nor impartial and separate from government.
- However other forms of these clauses undermine the sovereignty of governments, including our own, to regulate for public purposes including:
- Environmental standards for clean water or air, or climate change, and protection of public property rights – like terms for use of public water and access to rivers and lakes.
- Public health measures such as what health treatments should or shouldn’t be able to patented, and controls on smoking.
- Whether a country can control the overseas purchase of our farmland or housing if that affects values.
…fundamentally New Zealand does make sure that, and has ensured in the past, there are safeguards when it comes to investor-State dispute settlement provisions.
Naturally the government claims that the ISDS provisions of the TPPA will be well designed too. But will they? Such clauses are falling out of favour. I’m going to quote extensively from this excellent piece by Bruce Munro in the ODT:
Prof Kelsey has been watching the proliferation of ISDS cases since the new millennium.
”The investor-state dispute process in the investment chapter of the TPPA is enforceable by the companies themselves. That’s the whole problem,” she says.
”And that investment chapter is very broad in what it can capture in terms of government action.
”The number of cases has absolutely mushroomed … because the international investors have grasped on to these with alacrity in the last few years.” A United Nations report on the rise of ISDS says governments are concerned.
Ongoing cases include a United States pharmaceutical company suing Canada because its supreme court refuses to recognise a drug patent; Germany being sued for phasing out nuclear energy; and Egypt for raising the public sector minimum wage.
Closer to home, Australia is being sued by tobacco giant Philip Morris under an investment agreement the country has with Hong Kong. WHEN, in late 2012, Australia became the first country to introduce plain packaging of cigarettes, Philip Morris responded with an ISDS, arguing the new packaging unfairly impacted on its investment.
The tobacco company has also partly financed a case being taken against Australia by five tobacco-producing states through the World Trade Organisation (WTO).
In 2012, Mr Groser was reported as saying he did not believe the investor-state dispute procedures being negotiated in the TPPA would limit the Government’s ability to pass laws. Two months ago, the New Zealand Government announced its Bill providing for mandatory plain packaging on cigarettes would be delayed until the WTO case against Australia’s plain-packaging law had been concluded.
In Europe, the backlash against ISDS provisions in trade agreements is growing. The European Union is in the middle of negotiating its own version of the TPPA with the United States. But things are coming unstuck for the Transatlantic Trade and Investment Partnership (TTIP) over the issue of investors suing governments. The EU has pressed pause on negotiating the investment chapter of the agreement while it holds public consultation on the issue. France and Germany have declared they will not sign up to a deal that includes ISDS measures.
Of course, the exact detail of the proposed TTIP, TPPA and the other free trade deal ”biggie”, TISA (Trade In Services Agreement), are unknown because negotiations are held behind closed doors. Unknown, unless you are among the 600-odd US corporate advisers who have access to the text and provide input to it.
What is publicly known about the content of the TPPA comes largely from leaked draft chapters. Critics say this is not good enough; living in a democracy means citizens should have the right to know about, and have a say in, what is done in their name.
Calls for the TPPA text to be publicly released and debated have come from, among others, the US Congress, the vice-president of Peru and opposition politicians in Japan, Australia and New Zealand. … Prof Kelsey [says] ”If we have nothing to fear [from the agreement] then show us the text”.
Grosser has confirmed that the TPPA (if it ever happens) will contain ISDS provisions. Such provisions are increasingly seen as problematic, and we can’t have any confidence that they will be negotiated well when US “corporate advisors” get to see the text and we the people do not (see this excellent insider account of the massively excessive secrecy surrounding the development of the TPPA).
Unless and until the text of the TPPA is made available for public discussion I for one hope that the rumors death of this process have not been exaggerated.