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.

http://politik.co.nz/en/content/foreignaffairs/1231

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.