Foreign investors will be given special rights not available to New Zealand investors. Yet it will be almost impossible to stop them from exporting 100% of their profits out of the country.

A:

Investors from TPPA countries, notably the US and Japan, gain special rights that are not available to New Zealand investors. The agreement limits our right to vet foreign investment and impose conditions to ensure it benefits NZ businesses, technology developers and local communities. Yet it will be almost impossible to stop foreign firms exporting all their profits out of the country.

Foreign investors can enforce these special rights in controversial offshore tribunals, not in our domestic courts. Investor-state dispute settlement (ISDS) provisions in other agreements have been widely used (especially by US investors) to challenge new regulations that adversely affect their business. The TPPA would allow foreign multinationals to challenge a huge range of decisions in future, such as regulation that adversely affected a contract for oil exploration, a PPP contract for water, sewage or toll roads, a mining or forestry concession with central government or with an SOE exercising a delegated power.

The government says the TPPA has addressed the problems with ISDS, but it has tinkered at the edges. Most arbitrators are still likely to come from a small club of investment lawyers, with no effective conflict of interest rules (although some are promised). There is guarantee they will apply consistent rules and no way to appeal if they make rogue decisions. There’s no cap on damages or compound interest.


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