NZ-Aus ISDS clause already existed

An interesting point from Politik on a an implied improvement in the CPTPP agreement, regarding Investor State provisions with Australia.

Parker’s statement on Sunday said: “It (the CPTPP) 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.”

Strictly speaking, Parker is correct. By using the word “retained,” he acknowledges that the agreement not to use the ISDS clauses has been in existence for some time.

That is confirmed in a little-noticed section in the TPP National Interest Analysis produced by the Ministry of Foreign Affairs and Trade in January last year which said: “Consistent with ANZCERTA and the Australia-ASEAN-New Zealand FTA, TPP’s ISDS provisions would not apply between New Zealand and Australia. “

Notice of this was posted as an “associated document” to the TPP on the MFAT website in late 2015.

But speaking in Sydney on November 5, after her meeting with Australian Prime Minister, Malcolm Turnbull, Prime Minister Jacinda Ardern appeared to suggest that the pair had exchanged letters agreeing not to invoke ISDS procedures against each other.

“We discussed a signed letter on the ISDS clauses which we see as being mutually beneficial,” she said.

“That acknowledges our positions on ISDS – at least between each other.”

The exchange of letters (if it was new) was not necessary; MFAT had already established that the ISDS clauses did not apply to Australian investment in New Zealand.

So despite what was implied by Ardern we have never had an ISDS claim in the past, and the TPP already had an exclusion to ISDS applying between Australia and New Zealand, which amounts to 80% of our overseas investment.

Odd that when in government National hadn’t done more to point this out.

ISDS concerns seem to be much ado about bugger all.



  1. patupaiarehe

     /  November 14, 2017

    This whole ‘Trade Agreement’ thing interests me. In my line of work, we export FA. We construct buildings locally. Our workload is affected by the value of the dollar. Depending on the ‘exchange rate’, we are either doing work for importers, or exporters. Either way, anyone involved in construction in TGA, is doing very well…

  2. Alan Wilkinson

     /  November 14, 2017

    Much ado by people like Zedd and Robert and the Greens who know bugger all.

  3. robertguyton

     /  November 14, 2017

    ““We continue to seek similar agreements with the other countries in this new Agreement.”
    Good on ya, New Government! Why didn’t National do this? Parker’s telling the truth and showing how far ahead of the old, retired-from-active-service National used-to-be Government-now-Opposition, the fresh Government is.

    • Alan Wilkinson

       /  November 14, 2017

      Have you forgotten how NZ took Australian apple barriers to the WTO dispute resolution and won, Robert? Or just never knew?

      • Blazer

         /  November 15, 2017

        the WTO arbitrates disputes between many nations,not just Australia and NZ,…surprised you never..knew.

        • Alan Wilkinson

           /  November 15, 2017

          Drivelling irrelevance.

        • High Flying Duck

           /  November 15, 2017

          So they handle investor state resolutions that you are dead against?
          Not sure the point of your comment.

  4. David

     /  November 14, 2017

    I have to say I am quite surprised at her ability to lie and spin but she did work for Blair and Clark so learnt from the best. The TPP is largely the same, she stuffed up over the election of the speaker and she is trying to manufacture a row with Australia over refugees for naked political purposes and its very early days.

    • She can elevate herself to truth seeker, but the more she gets caught out fibbing the sooner her array of overblown balloons will turn to a pile of worthless latex shreds.

      Let’s never forget the high opinion this woman has of herself and how willing she is to let us know how important she is.

      In her Herald Job interview panel she variously described herself using the superlatives below:

      Bloody minded

      That’s an awful lot of rating yourself and vanity in one interview and it’s a hell of a lot of awesome to live up to.

      • Blazer

         /  November 15, 2017

        those were just her vices…you should see her…virtues!

        • Thing is, the whole thing , apart from a couple of pages of typo corrections and appeasing the Canadians with a name change, the agreement stands as written up months ago. Parker and Ardern claiming change enough to warrant their 180 deg shift in position is one thing, but going for saintlike glory is patently disingenuous and naive. It’s setting oneself up for ridicule.

          • Blazer

             /  November 15, 2017

            ridicule!!I would have thought it would be..APPLAUSE,from National and its acolytes.

            • It is applauded, but what about their U-Turn, what about their pretending at substantive changes when it’s mere typos and NO CHANGE.

              Keep them honest I say and I intend to do so.

      • robertguyton

         /  November 15, 2017

        David and traveller; determined to get traction from the “Jacinda’s a liar meme – National’s only hope in an environment were Jacinda’s popularity is growing by the day.
        Making the liar strategy so hilarious from the point of view of everyone bar the National Party sycophants, is the memory of John “pants-on-fire” Key and his special brand of bald-faced Pinocchio-ism.
        Jacinda, a liar?
        Pleeeeeeeeeeease !

  5. Blazer

     /  November 15, 2017

    ‘Odd that when in government National hadn’t done more to point this out.’…not odd at all.National puts the agenda of its donors in place without worrying about detail…too much.

    • “National puts the agenda of its donors in place without worrying about detail” – do you have any evidence of this, or is it just an empty assertion?

      • Blazer

         /  November 15, 2017

        its on a par with this…’“the negotiations after the general election were essentially a fraud’…so you decide.

        • Surely youre not telling us Peters could have entered into genuine negotiations with a group of people, who unbeknown to them, he felt had wronged him so deeply that he’d already filed court papers against.

          There’s one very bitter, vengeful old man out for revenge.

          • Blazer

             /  November 15, 2017

            Hardly ‘unbeknown’ to them..the them that ..wanted to cut out the middle man,the them that had a promise ,not to include him in Govt,that denigrated him at every opportunity.Surely you ‘re not saying that National are…STUPID!

      • I’ve seen some bizarre and unsubstantiated claims on this board, but that one…

        • Blazer

           /  November 15, 2017

          Is that Ruth Richardson in a ball gown,with the speech bubble…I can have my cake..and eat it…too.

  6. Matt

     /  December 3, 2017

    ‘ISDS concerns seem to be much ado about bugger all.”

    Not at all.

    Investment originating in Australia can easily be routed via a third country so that it is covered by ISDS. This process would be trivial for a multinational corporation (big oil for example) and relatively easy for any investor.