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.

 

Opposition remains to TPP

While Jacinda Ardern is happy with progress made with the now renamed CPTPP trade agreement that continued to be negotiated parallel to the APEC, but opponents in New Zealand remain opponents. This is no surprise.

Vernon Small:  Jacinda Ardern passes Apec summit test

Now it is back on track – albeit now delayed until the next time leaders can gather – and Ardern has set New Zealand up to sign the agreement formally known as the Trans-Pacific Partnership.

It transmogrified into the TPP-11 when President Donald Trump pulled the United States out in favour of bilateral trade deals – where New Zealand is vanishing far down the queue.

Perhaps fearing a countdown – TPP-10, 9, 8 – and apparently at the request of Canada, it has emerged from the crystalised emphasising its comprehensiveness and progressiveness.

It might be near unpronounceable as the CPTPP (Comprehensive and Progressive Agreement for the Trans-Pacific Partnership), and loom on paper like an abbreviation of something from the former Soviet Union, but apparently the rebranding will help Trudeau sell it to his voters.

Signing the deal, but with some victories, would have been one of Ardern’s key aims. Not being blamed for its failure was probably another.

Critics in New Zealand were wishing for it to fail, but to no avail.

So it is no surprise her team have pushed hard to the media both messages; that any hold-ups are not of New Zealand’s making and that there have been significant wins on investor- state disputes settlement (ISDS) clauses. A “damned sight better” than it was, Ardern stressed as her crafted sound bite.

The TPP’s opponents at home have labelled it spin and are clearly disappointed Labour’s strong rhetoric did not see it reject the deal in its entirety.

Some aspects of the ISDS clauses have been narrowed and those “suspensions” have been put on ice, pending a possible US return.

In theory, New Zealand could veto them returning if the US insisted on the resurrection of the ISDS clauses and if our Government was prepared to stare down a post-Trump US and the other 10 CPTPP nations.

The incoming Government has managed to brush some fleas off the clauses, which Ardern called “a dog”, but she will be hoping the shift against them internationally will continue and that they will stay impounded when they are reviewed in three years time.

Ardern says it is now “a damn sight better than what we had when we started” and obviously wants it to happen. Not so the TPP opponents.

RNZ: TPP critics unmoved by new negotiation wins

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.

CTU secretary Sam Huggard said the agreement was still not good enough on labour laws or transparency.

He said he was keen to talk to the government about negotiating different types of trade deals in the future.

“Certainly the New Zealand Council of Trade Unions has shown a strong interest in its opposition to the TPPA for some years now, and that will continue.

“I guess what we’d like to do though is be part of a conversation with government about what a better agenda for trade could look like for working people.”

He said the TPP was structurally biased towards the commercial sector and downplayed issues such as health, safety and human rights.

And Jane Kelsey is also unsurprisingly still opposed – there is less chance of her supporting the TPP than there is of John Key making a political comeback or Andrew Little taking back the Labour leadership from Ardern.

On Saturday when there appeared to be a hiccup in the TPP negotiations Kelsey tried to start a campaign to pressure Canadian PM Justin Trudeau to ditch the deal: Help kill TPPA today by tweeting PM Trudeau

It’s not over yet. I don’t want to jump the gun. There will be more attempts to pull it off today.

The Japanese PM Abe is now trying to pressure Canada to finalise the agreement whilst they are in Vietnam. Can you please help us in tweeting PM Trudeau, Canadian Trade Minister and the Canadian Foreign Minister.

Canada refused to sign on at the last minute due to concerns around labour rights, Indigenous rights, cultural issues and gender equality.

Asking them to maintain their position on the #TPP and put culture, indigenous rights, women’s rights, and labour rights ahead of corporate interests.

That failed. Kelsey also posted yesterday: Labour largely endorses National’s TPPA, but it’s not all over. What now?

The bad news is that the Labour government has endorsed the Trans-Pacific Partnership Agreement, with the suspension of a limited range of items, at the ministerial and leaders’ meetings in Da Nang, Viet Nam.

The ministerial statement released by the TPPA-11 has a catchy new branding for the deal: the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP).  No easy slogans there! But isn’t it interesting how something so toxic can simply be relabelled ‘progressive’?

I suspect Kelsey would see any sort of trade deal as toxic.

So, what happens now? There is no timeline for the next meeting of the CPTPP parties. That means there is now time for the new government to conduct in-depth consultations over its proposal to adopt the deal. It also needs to commission the robust analysis that Labour called for in opposition, independent of MFAT and consultants like the NZIER who basically rubber stamped the previous shonky modelling.

They need to make sure it uses realistic models that also cover the broader economic implications, especially for jobs and income distribution. If the economics don’t stack up, as Labour said they didn’t with the original TPPA-12, then they have no basis for arguing that the CPTPP should proceed.

Their independent review also needs to include non-economic impacts on environment, health, human rights and the Treaty of Waitangi.

But before it does that work to advance a deal they previously refused to ratify, the new government needs to give priority to its proposed full and participatory review of trade policy. All existing and future negotiations must be frozen until that is done.

As far as Kelsey is concerned it needs to be her way or no way.

However both Labour and National support the CPTPP largely as it is – that’s 102 seats out of the 120 in Parliament.

Minister of Trade David Parker is speaking on RNZ now, dismissing Kelsey’s criticisms.

Concerns and opposition dominate at The Standard: The TPP11 negotiations: ISDS provisions are gone – almost

TPP-11 “down to the wire”

Prime Minister Jacinda Ardern is now in Vietnam where Trans Pacific Partnership negotiations are “down to the wire”,  reported to be near agreement but held up at the last minute by one country (not New Zealand).

RNZ earlier today: Ardern: TPP talks down to the wire

Prime Minister Jacinda Ardern has arrived at the APEC summit saying talks to conclude the Trans Pacific Partnership are “down to the wire”.

Trade ministers of the 11 countries involved, including New Zealand’s David Parker, have been meeting on the sidelines of Apec at Danang in Vietnam.

New Zealand wants to drop the provisions on foreign corporations suing governments using overseas tribunals, but Ms Ardern admitted it had been tough going convincing others.

“I don’t want to predict what way it will go. There are a number of issues still on the table. Not all of them are ours.

“We are pursuing our interests but other countries certainly have their issues they continue to pursue. We of course are continuing to focus on both trying to balance our exporters’ needs but also our country’s.”

Ms Ardern doubted a TPP deal could be be done if if there was no agreement today.

But after apparently getting close to agreement there has been a setback. RNZ: ‘It’s not New Zealand holding up the consensus’ – Parker

The Trans-Pacific Partnership has been put at peril by one country after leaders came achingly close to striking a deal last night.

Officials are now scrambling to revive the stalled trade pact after a series of meetings in Vietnam.

Mr Parker said Labour had got “some of what we wanted” and the issue had been “improved but not completely resolved”.

“We’ve made it clear that for the future we’re not on for [investor-state dispute settlement] clauses.”

Government leaders will resume their talks this evening New Zealand time.

Speaking in Danang, Trade Minister David Parker said ministers thought a deal had been struck when their meeting finished about 10pm on Thursday night.

But in a “somewhat surprising” development, once it was passed on to officials, it emerged one country was still holding out.

“There was celebratory clapping and back-slapping,” Mr Parker said.

“It was then turned over by ministers to officials … and one of the parties said that they had not reached agreement.”

Mr Parker would not name the country responsible, but denied it was either New Zealand or Canada.

“It’s not New Zealand holding up the consensus. We reached agreement.”

Talks will resume this evening (NZ time) to try and get the agreement over the line,

NZ First plans with Russia puts EU trade at risk

A trade concern has emerged out of the coalition agreement between Labour and NZ First that could potentially put future trade opportunities with the European Union at risk.

NZH:  Winston Peters’ plans to reopen trade with Russia raises alarm from Europe

KEY POINTS:

  • Buried detail in Labour-NZ First coalition agreement calls for thawing of relations with Russia, on ice since invasion of Crimea and Ukraine.
  • EU Ambassador critical of move to break ranks on sanctions and warns of consequences for EU-NZ free trade negotiations.
  • Commentators say pursuing policy of warmer relations with Russia would position New Zealand alongside Trump administration.
  • Winston understood to have met several times with Russian ambassador over the past year.

New Zealand First’s plans to reopen trade negotiations with Russia have sparked the new Government’s first international crisis.

The unheralded policy this week drew an unusually forthright and undiplomatic rebuke from European Union ambassador Bernard Savage.

At a briefing on Tuesday in Wellington, Savage said any moves made towards thawing relations with Russia would be viewed in a “very negative” light.

The policy, written into the Labour-New Zealand First coalition agreement at the urging of the smaller party, risks harming relations with one of our largest trading partners in order to enhance those with one of our smallest.

According to 2016 figures the European Union is our third-largest trading partner with a total of $20 billion in imports and exports each year, while two-way trade with Russia currently amounts to only $417 million.

Savages told those attending that reactivating the stalled Russia deal – suspended since 2014 – would complicate New Zealand’s efforts later this year to secure a free trade deal with the EU.

This will take some careful managing by the Government. It is complicated by split responsibilities between Labour (David Parker as Minister of Trade) and NZ First (Winston Peters as Minister of Foreign Affairs.

This is on top of conflicting aims between Labour and the Greens on the Trans Pacific Partnership.

Talks on TPP minus USA

In May Japan surprisingly indicated an interest in reviving the Trans-Pacific Partnership. Talks get under way in Japan this week without the US.

Donald Trump withdrew the US from the TPP as soon as he became president.

RNZ:  Japan’s change of heart on TPP good for English

The commitment of Japanese Prime Minister Shinzo Abe to the Trans-Pacific Partnership clearly came as a surprise to both Mr English and his Trade Minister Todd McClay.

In terms of Shinzo Abe’s sudden decision to get back on the TPP-train Mr English credits Mr McClay’s work getting around the region talking up the agreement and trying hard to convince the other remaining 10 nations that it’s worth sticking with.

It may be Mr McClay’s hard work that helped convince the Japanese, but it is also true that Japan is increasingly nervous about its rogue neighbour, North Korea.

The TPP is both a trade deal and a strategic deal and with Japan having it written into its constitution that it can’t use war as a means to settle international disputes, it needs strong allies – hence its obvious preference at having a deal which involves the United States.

Mr Abe wants the TPP text to remain as it is, which means the United States will get the benefits of the agreement even if it isn’t signed up.

But it also means it is easy enough for the United States to rejoin the grouping should it wish to in the future.

Either way the change of heart by the Japanese looked good for Mr English after his first major meeting in Asia as Prime Minister.

Now: TPP reps meet in Japan ahead of APEC

Countries that signed up to the Trans-Pacific Partnership (TPP) have sent representatives to Japan to work on an agreement this week – without the United States.

They’re hoping to have a proposal ready for trade ministers at November’s APEC meeting in Vietnam.

With continuing uncertainty over trade policy under the Trump administration in the US, there’s rising interest in how a regional trade deal might increase security.

New Zealand’s Trade Minister Todd McClay said economic and strategic benefits went hand in hand.

He said countries that traded with each other and were integrated economically were usually good friends.

“If you look over a period of time, it’s not the only reason, but often that’s why regions have been destabilised – when you don’t have that balance around opportunity and growth.”

There was more to trade and trade agreements that just people buying and selling, he said.

If there is a change in government in September I wonder if there will be a change in approach to the TPP.

One of the points of opposition to the TPP was giving concessions to the US.

Japan and NZ aim for TPP progress

Trade Minister Todd MaClay has visited Japan with Prime Minister Bill English, and both countries have announced a willingness to progress the Trans-Pacific Partnership agreement despite the withdrawal of the United States.

Newshub: English’s Japan trip breathes new life into TPP

Prime Minister Bill English has been meeting with his counterpart Shinzo Abe. He says he’s looking forward to working with Japan to move the TPP forward, without the United States.

“Acknowledging the leadership of Prime Minister Abe, I’m taking it forward. Like Japan, New Zealand has ratified the agreement, and we look forward to working together to progress the TPP.”

The 11 countries left negotiating the agreement after the United States pulled out will meet in Hanoi, Vietnam, this weekend.

New Zealand and Japan remain the only countries to have ratified the TPP.

It’s likely the text that was signed last year will be revised, now the US has left, before it’s agreed to by all member countries.

Japan Times: Japan and New Zealand agree to aim for progress on TPP by November

Japan and New Zealand confirmed they will aim to reach an agreement with other signatories to move the Trans-Pacific Partnership forward by November despite the withdrawal of the United States.

“What is important now is whether the (remaining) members can share a view about the future direction of the TPP … and we hope to make efforts to reach an agreement” by November when a summit of the Asia-Pacific Economic Cooperation forum will be held in Vietnam, economic and fiscal policy minister Nobuteru Ishihara told reporters after talks Monday with New Zealand trade minister Todd McClay in Tokyo.

Japan and New Zealand are among the 11 remaining Pacific Rim countries pursuing the TPP free trade pact without U.S. involvement, but some countries, including Vietnam and Malaysia, which hope to boost exports to the United States, are believed to be reluctant to put the agreement into force without the world’s biggest economy.

“It is extremely important that the 11 countries unite and be clear about the future of the TPP” despite the “differences in the ideas and motives of the member countries,” said Ishihara, Japan’s point man on TPP negotiations.

The two ministers met as representatives of the 11 states will try to narrow their differences at a TPP ministerial meeting, set to take place Sunday in Hanoi alongside an APEC trade ministers’ meeting that starts Saturday.

“The TPP meeting in Hanoi will be an important meeting as we look to discuss the direction of the TPP,” Ishihara said, adding that Japan and New Zealand will seek to “lead the discussions.”

New Zealand formally ratified the TPP deal Thursday, becoming the second signatory country to do so after Japan, which completed domestic ratification procedures in December.

So a revamped TPP could still go ahead without the US.

Trump confirms US withdrawal from TPP

Donald Trump has announced that in his first day in office as president he will initiate a US withdrawal from the Trans-Pacific Partnership. He has already indicated this would happen.

Stuff: John Key responds to Donald Trump’s decision to quit TPPA: ‘The US isn’t an island’

Calling the 12-nation agreement “a potential disaster for our country,” the president-elect said he would file a notification of intent to withdraw from the deal pushed by President Barack Obama as soon as he takes office on January 20.

Prime Minister John Key has also said the US cannot just sit there and not trade, particularly with the fast-growing markets in Asia.

“The US isn’t an island, it can’t just sit there and say it’s not going to trade with the rest of the world.

“At some point the US would want to think about how it accesses those very fast-growing markets in Asia, and what role it wants to have in Asia.”

So it is now up to the other eleven countries to work out what they want to do with there. A modified agreement will presumably be necessary id things are to proceed without the US.

Or seek a bilateral agreement with the US. Trump said he would pursue ‘free trade’ agreements instead that suited the US better.

New Zealand would want to be near the front of the queue for talks with the United States about any bilateral trade agreement, Trade Minister Todd McClay says.

“Obviously, if the Trump administration wanted to look at new, bilateral FTAs, we would be keen to be near the front of that queue.”

McClay said despite this, the TPPA would still be the country’s first FTA with Peru, Mexico, Canada and Japan.

I expect that the US under Trump’s leadership will have greater priorities than a trade deal with New Zealand.

TPP without the US?

When Donald Trump was elected US president it was presumed the Trans-Pacific was history, but it’s possible the other eleven countries will go ahead without the US.

This would presumably require another agreement because the current agreement was dependant on the US ratifying it.

Stuff: TPP nations eye a future without the US with Trump in the White House

Leaders of the Trans-Pacific Partnership nations are openly considering going it alone, without the United States, in a so-called ‘TPP minus one’ in the wake of Donald Trump’s election.

The 12 countries are meeting on the margins of the 21-strong Apec meeting in Lima, Peru.

Talking to reporters shortly after arriving in the Peruvian capital, Prime Minister John Key made it clear the grouping faced a critical crossroads with Trump’s election.

.”Maybe it is one of the most important Apecs I have been to.”

It could be interesting, but I would be surprised if the US is in a position to make decisions or even give an indication where they stand as Trump transitions into the White House.

There were three scenarios: Go ahead without the US with an 11-member TPP, Trump changes his position and accepts the agreed text, or the countries go back to the table and start talks again.

New Zealand’s goal was a free trade agreement that included the US and Japan through the TPP. 

But a deal without the US, but with Japan would still be worth it from New Zealand’s point of view.

A meeting of TPP leaders is planned for Sunday and New Zealand was reserving judgement on a ‘TPP minus one’, he said.

“It might be, in the end, the way we go forward without the United States – that’s  not an impossible scenario. But we have a few years to make that decision.”

If they want to proceed with a Pacific trade partnership it looks like it will have to be minus the US.

If this is what ends up happening it will be interesting to see how many still oppose it because it’s a trade agreement, and whether some decide to switch to supporting it without the US being involved.

TPPA trumped

Meanwhile, in New Zealand the Trans Pacific Partnership legislation is down to pass into law today …….

Stating the obvious:

BREAKING NEWS – John Key admits TPP will not happen in the short-term with Donald Trump in the White House

John Key is doing well articulating the future NZ relationship with Trump: we don’t have to like it, but we do have to make it work

Key claims TPP is 50:50

Yeah, right.

John Key said yesterday that he thinks there is a 50:50 chance of the Trans-Pacific Partnership getting passed by the US congress in the lame duck period (after next week’s election and before President Obama’s term expires on 20th January 2017).

Audrey Young: John Key says TPP has a 50:50 chance of being passed in Congress lame-duck period

Prime Minister John Key believes the TPP still has a 50-50 chance of being passed in the lame-duck Congressional period after the November 8 presidential election.

He says a lot would depend on the direction given by Congress’ top ranking Republican, Speaker Paul Ryan, and whether Democrat candidate Hillary Clinton won the election.

“I think if Donald Trump wins it’s got no chance But if Hillary Clinton won there is a possibility and a window.”

But there was definitely a view out of Washington from some people that it would go ahead.

“I think it’s a bit 50-50 myself.”

I think that’s a bit optimistic. There is a possibility it will pass through Congress in the next three months. There is also a possibility sanity will prevail in the presidential election. Both seem like extreme long shots.

Trump and Clinton both oppose the Trans Pacific Partnership trade deal among 12 countries and signed in New Zealand in February.

It could pass in the lame duck period. Ryan said in August that the numbers weren’t there although “Inside US Trade” reports that the Obama Administration is close to a solution on the biologics part of the TPP deal that has upset Republicans.

If Clinton wins but there would be an uproar from Sanders supporters and Trump supporters, and probably extreme pressure on both Republican and Democrat representatives.