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Trans Pacific Pillaging: the investments chapter

By Jonathan J. Ariel - posted Thursday, 9 April 2015


Questions: Does this mean if an Australian government when privatising a utility, for an array of reasons wants to sell it to an Australian superannuation fund for less money than a corporation in a TPP member country is prepared to pay, that the said Australian government's decision will be in violation of the TPP and found to be null and void by an ISDS court?

Article II.6: Minimum Standard of Treatment

1. Each Party shall accord to covered investments treatment in accordance with applicable customary international law principles, including fair and equitable treatment and full protection and security.

2. For greater certainty, paragraph 1 prescribes the customary international law minimum standard of treatment of aliens as the standard of treatment to be afforded to covered investments.

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Question: Should Canberra agree to a situation where "international law" will trump domestic law? And if so, whose interest is Canberra serving?

Article II.9: Performance Requirements

1. No Party may, in connection with the establishment, acquisition, expansion, management, conduct, operation, or sale or other disposition of an investment of an investor of a Party or of a non-Party in its territory, impose or enforce any requirement or enforce any commitment or undertaking:

(a) To export a given level or percentage of goods or services;

(b) To achieve a given level or percentage of domestic content;

(c) To purchase, use, or accord a preference to goods produced in its territory, or to purchase goods from persons in its territory; and

(d) To relate in any way the volume or value of imports to the volume or value of exports or to the amount of foreign exchange inflows associated with such investment.

Question: If say, an oil company from a TPP member state discovers great reserves of natural gas in northern NSW and believes, no, let's say can prove that Japan or China is happy to pay far more than domestic Australian consumers, will the NSW or Commonwealth governments be unable to direct the oil company to reserve a stipulated share of production for local consumption?

Article II.10: Senior Management and Boards of Directors

1. No Party may require that an enterprise of that Party that is a covered investment appoint to senior management positions natural persons of any particular nationality.

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This one's cut and dried. And there are other worrying issues in the 55-page draft chapter.

Our negotiators should pause and reflect on at least five issues.

First, China, our biggest trading partner remains outside the tent. Put bluntly, the absence of the very nation that saved the Australian economy over the last decade from the economic toilet should be called for what it is: an affront to Australia's interests. An affront weshould make clear to Washington D.C.

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About the Author

Jonathan J. Ariel is an economist and financial analyst. He holds a MBA from the Australian Graduate School of Management. He can be contacted at jonathan@chinamail.com.

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