MIL OSI – Source: Professor Jane Kelsey – TPPA Investment leak: Jacobi misleads about protections for NZ
On Radio NZ’s Morning Report Stephen Jacobi said New Zealand would have protections from obligations in the investment chapter of the Trans-Pacific Partnership Agreement (TPPA) that were not part of the text posted by Wikileaks yesterday.
‘That is misleading’, according to Professor Jane Kelsey who specialises in international investment agreements.
‘It is true that the leak did not include annexes of so-called non-conforming measures, so we don’t know what New Zealand has proposed, what has been accepted and what is still under discussion.’
‘But even if we assume hypothetically that the other eleven parties, including the US, allow New Zealand to include everything the government does, now and in the future, through these annexes (which they will not), that won’t protect us.’
Professor Kelsey points out that these annexes only apply to some of the rules in the chapter. They do not apply to the rules that foreign investors rely most on to sue governments, for example in current investment disputes over Australia’s plain packaging of cigarettes, Quebec’s moratorium on fracking, or the Canadian courts’ denial of a patent for a medicine.[i]
Stephen Jacobi’s second argument is that these agreements have general exceptions in another chapter that would protect areas like public health and environment.
‘Mr Jacobi must know that the US has never agreed that the general exception provision should apply to the investment chapter in its previous agreements’, Kelsey said.
‘Having followed the negotiations closely for the past five years I can see nothing to suggest that position has changed.’
‘Any concessions the US did make in this area would be in the investment chapter itself. But what we see in the leaked text is a cut-down version of the standard general exception that applies to only to aspects of the rule on performance requirements.’[ii]
There is also a circular provision that the chapter shall not be constructed to prevent the government taking any measure that is otherwise consistent with the chapter.[iii]
Several other very specific exceptions exclude decisions made by the Overseas Investment Office[iv] and a weak annex on expropriation.[v]
Clearly, Australia considers its equivalent of Pharmac is vulnerable to the investment rules, because it has proposed a specific Annex to protect decisions by those various agencies.[vi]
‘These errors reinforce the need for the government formally to release the text now so we can have a properly informed debate, including expert analysis, that allows New Zealanders to assess the real implications of this for themselves’, Kelsey said.
[i] Article II.6 Minimum Standard of Treatment and Article II.7 Expropriation and Compensation
[ii] Article II.9.3(c)
[iii] Article 11.15
[iv] Annex II-H
[v] Annex II-B
[vi] Annex II-M