4 October 2015 – TVNZ Q+A:- @ 13.04 “There has never been a case taken against New Zealand…” @ 16.24 “We’ve never, ever been sued…”
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On 4 October, our esteemed Dear Leader assured New Zealanders that, under the various free trade agreements we are party to, “there has never been a case taken against New Zealand…” and “we’ve never, ever been sued…”.[…]
Key’s insistence that New Zealand is safe from lawsuits from foreign corporations indicates he was privy to the text of the finalised Trans Pacific Partnership Agreement (which is still a closely guarded secret by Trade Minister Groser) and that we, as a nation, are now fully exposed to litigation from Investor-State Dispute Settlement (ISDS) processes.
It seems that Dear Leader spoke too soon.
Not even a fortnight passed since he uttered those fateful words – an apparent challenge to the gods – and New Zealand is now being sued;
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In response to the lawsuit, our esteemed and much-loved Dear Leader stated;
“Quite frankly, you can get appeals both ways, so when Shanghai Pengxin was granted the right to buy the Crafar farms, there was also an appeal because that went through, and it was tested back in court – now it’s going the other way.
But look, in the end, if the courts determine that the Overseas Investment Office got it wrong, the Government will go and reflect on that and honour the law, we always do that.”
The only difference between scenarios envisaged under the TPPA and the Lochinver Station-Shanghai Pengxin-OIO case is that the latter is being tested under the jurisdiction of a New Zealand Court of law instead of an extra-judicial, and often-secret, corporate tribunal overseas.
This is cold comfort.
We now have a situation in our own country where, if we determine not to sell to an overseas investor, that decision can be over-turned. Our laws now allow foreign interests to be on an equal footing with New Zealand citizens.
You no longer have to be a tax-paying citizen (born or naturalised) to hold certain rights.
You can be a foreign corporation (or wealthy individual) with deep pockets and a small militia of flinty-eyed lawyers.
Money is now all it takes.
Mark 15 October 2015 in your diary as the day when our sovereignty was forfeit in the pursuit of global finance. If we dare say ‘No’, they have ways of changing our minds.
This will be the first, of many to come, “legal” challenges to our sovereignty.
And the worst aspect to where we have arrived, 31 years after David Lange’s government was elected and Roger Douglas began his so-called free-market “reforms”?
As a nation, Kiwis have allowed it to happen. We did this to ourselves.
Key is like King Midas but everything Key touches turns to shit …
Frank, although a detailed post the conclusion is disappointing by your standards. Whatever you say you cannot ignore the poll results. The latest Roy Morgam Poll has National at 50% .
You may not like what John Key stands for but based on poll results you need to explain more clearly what the benefits of kicking out the National Government will achieve for middle NZ. You are yet to convince me!
Grant – Sorry, I fail to see what connection you’ve made between latest Roy Morgan poll results and the contents of my story. If you dispute any of the facts I’ve presented, feel free to state the error, and the correction.
Thank you Frank.
I believe NZ Public are in dire need to be reminded of facts and evidence at all times given National and Key’s control of MSM and their spending on social media propaganda machine.
In reply to our fellow pro Key et Co, and the polling of recent years (under Key et Co), Dictators of the MidEast and Gulf such as Mubarak, Ghaddafi and others were all polling an impressive 90+% at all times (?!) I strongly believe that Key et Co are following the lead of those “legendary leaders”.
I know this is new to our formerly corrupt-free Aotearoa, however, it is now evidenced and backed by recent events, positions and stands taken by Key et Co undermining, belittling and insulting the Kiwi Public.
Even though I never met Professor Jane and in relation to her efforts re the TPPA, I admire what she has done and continues to do to expose unlawful actions taken by Key et Co (including Groser), David Parker with the Saudi bribe, Phil Goff re our poor troops left in the middle of a nasty war zone in Iraq.
Seriously, every one needs to reflect on what has been happening in NZ. The sale of infrastructure assets, the sale of our sovereignty in NZ.
May God defend Aotearoa since there seems to be some fellow Kiwis who don’t seem to care.
National Party social media action team strikes again!
I keep telling you guys you’re going to have to sharpen up your act if you want to have any success around here but that was worse than thet last attempt I saw.
Ah yes, those poll results again…
Who would like such a result and can afford to pay for it? National & co.
Where polls are about advertising/manipulating as much as or rather than informing, isn’t there motivation to weight them to produce a desired result?
Buy a poll result in advance. Do something people won’t like. Then bring out your manufactured result to show the people their friends must have liked it after all. Divide and rule. Please don’t tell me the masters of dirty politics would never stoop so low – for them it wouldn’t be very low at all.
Isn’t it true that anyone who can afford it is free to commission a poll? Has any polling company a public code of ethics that would prevent them from manipulating for a desired result if that was what the customer asked for?
Type in ‘How to get the desired poll result’ and have a field day.
The onus is no longer on anyone to prove a poll was rigged – there is so much motivation, capability and opportunity for doing so.
The onus has shifted, just most have yet to realise it. No poll should now be cited as providing impartial evidence of anything without some form of independent certification.
Grant of Wellington – your post above has to be the worst non sequitur I’ve seen online for a while. Wierd.
Grant of Wellington, that doesn’t make any sense at all.
Key states “We’ve never, ever been sued”.
Past tense, and correct. New problem. This will be the first time NZ is going to be sued. Yet again, Key still feels smug.
Let’s see how smug Key is, after he may lose his cases against Eminem, the ponytail pulling case, and the Lochinver case.
His very own lies are going to cost him dearly, possibly to the point of personal bankruptcy.
Will you still be feeling so smug then John?
Actually …you have raised a very good and pertinent point there…
Now…Eminem is a musician , right?…. in fact , …a very famous one…
And this Key character has just become a signatory to the TTPA… in which case not only do corporations seek to potentially sue a govt if that govt passes legislation that inhibits their profit making potential…
But also seeks to protect COPYRIGHT .
That’s right , folks – COPYRIGHT.
INTELLECTUAL PROPERTY.
And right again , folks ….Eminem is an American musician…the home of Hollywood’s drawing up of the TTPA to be ratified by their Congress…
Therefore…straight away we have the potential for COPYRIGHT INFRINGEMENT by the National party and the potential legal case for suing that party…
Is there only one rule for people like Dotcom and another for little Keesey – Weesey?
Just what does the TTPA cover under COPYRIGHT INFRINGEMENT???
Lets kick the ball off starting now with the National party – except that they are a party … not particularly defined in the greater sense as a govt but a party…
Lets hear it from the ‘ one rule for all ‘ troughers on THIS one….
Indeed, Katipo…
The TPPA will extend copyright from 50 to 70 years, and patents on medicines by 5 or 8 years.
It’s hard to see how tightening up on copyright and patents fits the definition of trade liberalisation.
Then again, more than one person has called thye TPPA as trade management rather than trade liberalisation.
Key’s admission that government will have to pay more for medicines as the length of patents on pharmaceuticals is increased is also cause for concern;
1. When government has to pay more for medicines, the immediate question is; what other part of Vote Health will they ‘raid’ to pay for higher pharmaceutical costs?
2. If the extra cost is taken from PHARMAC’s budget, what other medicines will be dropped as PHARMAC struggles to balance it’s own spending budget?
3. Will government increase PHARMAC’s budget to cater for higher pharmaceutical costs? In a pigs eye, they will.
4. When Key says that “government” will pay for higher pharmaceutical costs, they means we, the taxpayer will pay more.
5. How long before National increases the costs of subsidised medicines from $5 to $6, $7, $8, $9, etc, per prescription? They’ve already increased prescription charges once, from $3 to $5, in early 2013.
6. What extra cost will PHARMAC have to carry to pay for “reviews” of it’s decisions, where Pharmaceutical Corporations can challenge PHARMAC ecisions? Groser has already admitted that the cost will be $4 million to set up, and $2 million annually thereafter. Will “government” (ie, us, the taxpayer) pay for that? Or will that come from PHARMAC’s budget as well?
7. What other ‘fish hooks’ are there, we don’t know about?
Keys has also said McCukky had to bribe a Saudi Prince so he wouldn’t sue us. So meh. We haven’t been sued
Does Key really care about the average New Zealander?
No
Hahahaa….yessss…. I read that in the Herald and thought…. ” what the hellll ????!!!!?? ”….
Now it really isn’t funny at all – but the fact that there was this surreptitious little article on it ( Lochinver ) and at the same time so much ballyhoo about Key reassuring the public it wont happen to us….
I’m sorry but I find myself full of dark mirth at the hypocrisy of Key and his govt.
Nothing surprises me about this liar anymore. Nothing.
New Zealanders…I’ve said it before and Ill say it again… you have been right royally duped and conned to the back teeth and beyond by this pony tail pulling little wimp – the ” GET SOME GUTS !!” guy who pulls women’s hair….
And if you cant see how much you’ve been duped over this treasonous little mans tenure in office you are either incredibly naive or just incredibly bone lazy to do a proper background check.
You made your bed – now lie in it.
And don’t moan when your kids have to still live at home with you when their married 40 year old’s with their own kids either – and cant get into their own first home.
We warned you , you ignored the warnings.
Congratu – frikken – lations.
You are not seriously arguing that:
1. a judicial review under New Zealand law by a party directly affected by a government decision is the same as a dispute settlement process under a treaty;
2. foreign owned companies should not be able to take judicial review action;
3. ministers should be able to make any decisions they like under a statutory power with no recourse to the courts by those affected;
4. the right to seek judicial review has anything whatsoever to post-1984 economic policy?
Are you???
If you are you are woefully ignorant.
I suspect you know that you are not even remotely comparing apples with apples here and are just trying to inflame your more ignorant readers.
Matthew, in your little tanty-ranty, you’ve over-looked the following’
A. We have a free trade agreement with China. Shanghai Pengxin is a Chinese company.
B. Whether or not the lawsuit is taken under a FTA or local judicial review is immaterial. The point is that, under globalisation, we are vulnerable to such litigation. The China-NZ FTA facilitates litigation.
C. I sure as hell can’t recall “judicial reviews” prior to 1984. Can you provide examples?
At its
most basic level, judicial review is
available when an Act of Parliament creates a
discretionary power for public officials to
exercise – be they Ministers, Chief Executives
of Government Ministries, or Ministry
employees – and somebody adversely affected by
the exercise of that power challenges the
decision on the basis that the person exercising
it has not acted consistently with the
power given by the Act, for example, by
misinterpreting the provision giving it.
As I understand it, if the law does not permit foreign ownership (or even bans it outright), then an overseas investor has no grounds to seek a review. You can’t review something that is not reviewable. (In plain english; if foreigners have no right to buy land in New Zealand, then a foreign investor can’t sue. See my comment at October 18, 2015 at 10:44 pm to Nick.)
Conversely, because the law/international treaties currently permit foreign land ownership/investment, then Shanghai Pengxin has legal remedies available to it.
Your reference to Fitzgerald v Muldoon is not a foreign lawsuit either. According to Wikipedia (https://en.wikipedia.org/wiki/Fitzgerald_v_Muldoon ), Fitzgerald was a local Public Servant working for the NZ Government. Where is the involvement of foreign interests? I fail to see it.
This case appears to be a NGO environmental group sueing a company planning to set up a smelter in Aramoana. Again, this does not constitute a lawsuit involving the government.
So it appears (on the face of it) that your “examples” either have no bearing, or are misleading.
“As I understand it, if the law does not permit foreign ownership (or even bans it outright), then an overseas investor has no grounds to seek a review.”
If foreign ownership was not permitted, then there would not have been an application in the first place. NZ’er own huge tracts of land offshore, so I see no problem with foreign investors owning land in NZ.
…so I see no problem with foreign investors owning land in NZ.
And that is part of the problem.
That’s because you haven’t read my blogpost, Sandfly. The entire story is on overseas lawsuits. That is the context – not whatever you or Matthew are inventing.
Learn to read.
It’s commen for people to think Treaties are apart of domestic law. It is not. Treaties are apart of international law and has emplications for jurisdictions that the british settled because of common law, that includes jurisdictions that don’t have treaties.
We can not ignore the constitution of it all. This is why the high court argued for wider powers of review in the 70’s.
I read Matthew’s so-called examples, Sandfly, and they are fallacious. One is a general treatise on judicial reviews, one refers to a judicial review taken by a Wellington civil servant, and the last one refers to an environmental group suing an aluminium refinery.
None of which are examples of foreign corporations suing the NZ government.
So you obviously haven’t read Hooton’s examples either. Or are just trolling.
Actually Sandflypoint, Matthew didn’t provide any pertinent examples. The three he gave weren’t even remotely relevant.
Did you actually read what Matthew wrote and his references? Or are you just playing silly buggers with us?
So far, neither you nor Matthew have proven your position, whereras Frank has given specifics.
Matthew, I’ve checked the links you gave and looked up Fitzgerald v Muldoon.
The links don’t show any reference to foreigners suing our government and Fitzgerald was a local civil servant who got pissed of at Muldoon because of how he handled Labour’s super scheme in the 1970s. How the Fitzgerald case relates to foreigners suing us is a mystery to me.
So you’ve either picked the wrong examples or were hoping no one would check the examples you gave? Either way, you haven’t proven your case and Frank’s argument stands.
Hooton, the “Chinese-NZ FTA has nothing to do with the review”???
Wow, I guess splitting hairs is a whole new ballgame we have to deal with then, eh?
As long as it’s only a “judicial review”, then it doesn’t count?
I guess we’ll have to wait till Chinese actually sues us, I guess. No, wait, that won’t count because [insert reason here]
Matthew, I’ve followed your links and read up on the Fitgerald vs Muldoon case and can’t see any reference to foreigners suing the NZ government.
Have you got the right references? Or were you hoping no one would check?
Those are not answers to any of his questions.
You are clearly just obfuscating here. The Chinese FTA has nothing to do with this judicial review action, so I’m not sure why you are conflating the two.
My answers are fairly clear, Nick.
I am conflating the two because – despite your and Matthew’s claims to the contrary – they are inter-related. A judicial review is only possible because we have allowed land to be bought and sold by overseas interests. If that right did not exist, litigation would not be possible. There would be no basis on which to sue.
Just as, I would point out, no New Zealander can sue the Chinese government for not being permitted to buy land in their country.
I trust that is sufficiently clear?
I think Hooton is being sarcastic and implying that he can never be ignorant and false flag stuff distracts from TPPA, as if there could only be one important thing happening at a time.
Judicial review can not be overruled by an independent judiciary with less than an infinite number of appeals.
The High Court has the power of judicial review simply by being the highest court in the land. If you placed another court above them, then *they* would have the power of review, instead of the HC. I would rather the courts not change to advance corporate agenda.
I’m just wondering when it became okay for ISD tribunals to make rulings without telling people what they are [thats code for it is not ok].
We will have to wait until the full TPPA text is revealed and how it actually changes the way NZ is to amongst other things be prevented from regulating the finance sector, otherwise the HC sets the precedence [that means if you’ve got a problem with the government, the High Court is the place to go to sort it out].
The Chinese FTA has nothing to do with the Shanghai Pengin lawsuit??
Really??
So, Nick, it’s only a sheer coincidence that Shanghai Pengxin is a CHINESE company and the NZ-China FTA allows for their nationals and corporations to sue us??
Wow. What an amazing coincidence.
The China-NZ FTA doesn’t “allow” Chinese nationals to sue New Zealand. Chinese national affected by the decision of a New Zealand minister or official have always been able to seek a judicial review of that decision. There is no link between the two things at all. The New Zealand Government is regularly sued by foreign interests under New Zealand law, and I have never heard anyone (until perhaps Frank, now) argue they should not have this right. Key was clearly referring to the ISDS provisions in 13 of New Zealand’s treaties which have never been used. When someone does use these provisions, then Frank will be able to say Key was wrong.
The China-NZ FTA doesn’t “allow” Chinese nationals to sue New Zealand.
The China-NZ FTA certainly does have an ISDS provision:
Not only are you not proving your case, but you’re coming across as being underhanded with your “facts”.
Interestingly, though, I’m learning a lot more about FTAs than I ever have.
Thanks Frank and Priss too…
I am rather bemused about Matthew’s persistence in manipulating facts, leading to deceiving the general readership of this blog.
Matthew, I have become more and more impressed with TDB because it is probably one of very few forums that publish the facts as they are.
If you really care about Aotearoa and our fellow Kiwis, please adhere to ethical debate to allow us achieve a productive and positive outcome.
There is no room for misleading and deceiving individuals here.
Yours sincerely,
A Keen Kiwi TDB fan.
Matthew – do you understand how many of us feel you need to find a new career and we do not trust your ego-centered and naive defense of a leader who lies and can also not be trusted. He is leading a train wreck of a govt. and TPPA is about as rotten as it gets. Full of defenses and protections of the very mega-corporations that rape and take from land and seas all over the world. They are not concerned with workers and the environment – ONLY PROFITS AND PROTECTING THEIR PROFITS.
Frank is a wise and trustworthy man whom I and many others learn a lot from every time he puts his hands to his keyboard. You, on the other hand, are someone we avoid because we learn nothing from such a biased and defensive
perspective. Why not apply for a job as a lobbyist for the corporations or a puppet for jonkey donkey ? You are no authority in our minds.
“2. foreign owned companies should not be able to take judicial review action;”
Correct. Foreign owned companies are not governed by NZ law so should NOT be able to use the NZ legal or enforcement systems.
The frightening thing about the TPPA as far as we know is that it will provide an alternative legal system which is not subject to any democratic control. Those that have the most power will then control it. They will then use the government to enforce that control. (NZ signed.) Hence rule in NZ by overseas corporation as they will have the most power.
The consequences of this are extremely serious for sovereignty and democracy.
And this government has signed up for some beads and blankets and most NZ’ers do not seem to have a problem. Goodbye any chance of controlling our own destiny. Ask any native peoples how that works out.
Well Mr. Hooten Tooten why don’t we just sell the entire country to the highest bidder? The global Ashkenazi banking mafia, the Saudis, the Chinese? What does it really matter? For a reasonable amount of trillions we could all get a payout. All of you who just love to sell off will be more than happy to stay and those of us who find it all rather abhorrent can go. We could agitate for another total sell off in another country. Australia for example, thereby starting a stupendous national global sell out ponzi scheme in which we would be the win win winners because we started it all first. Never mind about anybody else.
We could naf off and start a colony on Mars perhaps. Anything would be preferable to watching the manipulated destruction and degradation of all humanity and anything good or decent human beings ever acquired in the way of civilization.
You may delight in kow towing Mr. Hooten Tooten, with your arse as high up in the air as you can manage but others have a less sullied perspective.
I like your Mr. Hooten Tooten ! ! funny and appropriate and he even does seem more like a comedian we laugh at than someone with authority status.
Hooten.
Should be another cheque from the National Party in your letterbox any day now. “Ignorant readers” eh. Spoken like the true condescending little weasel you are. Selected media presstitutes like you are part of the problem why we dont have honest, informed debate within this country’s media conduits. It is discussed in such a limited, spectrum as to delude people they are actually participants in a full and honest debate, of which it is neither. If your views were totally anti Key, how much air time do you reckon you would honestly get? Ask Bomber Bradbury he will be able to guide you.
Are you seriously arguing that International corporations should have the right to sue the NZ government at a cost to NZ taxpayers, if NZ laws could impede their profits? It’s that simple, dont attempt to make it anything else. Is this a fair and just system of democracy?Should the prize of Trade be gained at the expense of our Sovereignty?
Are you privvy to all the transcripts of what has been negoiated in total secret? Please post it if you do, so all us unwashed , ignorant masses can be as enlightened as you.
[…] more… […]
Ironically in amongst a lot of other land sales to foreigners going unnoticed I think it highly probable that this sale was rejected as publicity stunt, an appeasement to the half asleep Kiwis that our government really does care about keeping NZ land in New Zealanders hands.
Of course they don’t care and because it is likely this deal of all of them should have gone ahead, the sale will proceed or we will end up paying compensation or a bribe, depending on who is involved, to make it go away.
Oh well, in the world of doublespeak and smoke and mirrors shit happens and by the time they buy the farm no one will be listening anyway and we will all be a little bit poorer. And as they say the National Party, “Job done”!
I think you’re spot on, Xray. There was no real purpose in declining the sale; it was a publicity stunt. I think even Matthew Hooten conceded that on Radio NZ’s ‘Nine to Noon” political panel.
In a way, Hooten does have one point; if the Crafar farm sale; the Shania Twain purchase; the endless sale of farms to investors from US Harvard University; etc, all went through – the directors of Shanghai Pengxin are right to be miffed. Why were they turned down whilst everyone else in scrambling for lollies in the sandpit?!
I laughed wryly at his dig at the “ignorant” readers in here, after all, his team have worked very hard at keeping the population uninformed and at degrading public news services.
I agree. Journos like Hooten need to consider going out to pasture and finding other work.
So much ego and pro Natz bias that we do not watch him anymore.
Applying for judicial review is not quite the same as “suing” someone. But nevertheless, it shows again, that government agencies and offices can be taken to court. As private enterprises and well resourced investors tend t have deeper pockets, and are able to get expert lawyers, they will have some good chances of getting what they want.
Key is a BS artist, as we know. I heard on Mediawatch on RNZ tonight, how there was a damaging report on the Taji Camp in Iraq, which came out days before Key travelled there with his “embedded” journalists (ready to bark when he allows them to bark). As NZ First’s Ron Marks pointed out to media, it is hard to believe that the government and Key did not know about the report.
It would have shown the PR exercise of Key’s visit to the NZ Army trainers needs to be seen much more critically, as for their success and potential effectiveness to make a difference there.
That is just one other bit worth remembering, and the list is getting longer by the day, where John Key tells us BS, and misleads both MSM and the public in his usual, casual manner.
Shame on Key and Nats, shame on them.
And the Devil did meet Robert Johnson at the crossroads. And Robert Johnson did say to the devil, “What are about the fact that you might take my soul in exchange for making me the greatest bluesman that ever lived”. And the Devil did say to Robert Johnson “But look, at the end of the day….”
Just because we have never been sued does not mean we won’t be in the future. Right now – mega – corporations are suing states in the US for lost profits.
Shanghai Pengxin are not suing pursuant to any trade agreement, in fact they are not ‘suing’ at all. This is a judicial review, which is doing nothing more than ensuring our politicians followed the law. Your stretch on this is so long it would do AJ Hackett proud.
[Sandfly, you have email. Please respond to my request. – ScarletMod]
Sandfly, it’s fascinating to see the convoluted hair-splitting going on by you, Matthew, and NickCrampon. I think this is a taste of what is to come from National when more lawsuits – *cough*, sorry, “Reviews” – start rolling in.
Although as I’ve pointed out, most of the time, lawsuits and “reviews” aren’t necessary. As in the plain-packaging case, National simply rolls over and complies.
Your attempts at blurring the situation is a waste of time on your part. People aren’t stupid (contrary to Matthew’s assertion on October 18, 2015 at 12:45 pm) and see this as silly attempts to cloud the issue.
Judicial review = lawsuit, Mr Sandfly. You can split hairs till the dairy cows come home, but it’s still a lawsuit.
Sandfly, you’re nit-picking. Whether you call it a lawsuit or judicial review, the outcome is the same and the government’s decision can be overturned.
So you and Hooton are being mischievous by trying to cloud the issue. Neither of you are to be trusted.
Sandfly, please tell us you were being sarcastic or are you that naive?
Do you know the costs, implications and consequences of judicial reviews or challenging outcomes in the judicial system? Have you ever been a party in a law suit? Not to mention one with a state?
Sandflypoint, “suing” and “judicial review” are one and the same thing if they challenge (and succeed!!) a government’s decision. As I understand it, a “judicial review” can set aside a government decision. So if that’s not a lawsuit by any other name, then I don’t know what is.
You are muddying the waters and deliberately so, I think.
Thanks again Frank for a well thought out and informative piece.
You are appreciated !
“We’ve never, ever been sued” JOHN KEY
“Not even a fortnight passed since he uttered those fateful WORDS – an apparent challenge to the gods – and New Zealand is now being sued” FRANK MACSKASY
But this is not the first time either, proving John Key to be a double liar.
In 2013 when Solid Energy was first declared “Technically Insolvent” the government said that would “bail out” the troubled coal miner to the tune of $155 million.
This abuse of public funds was sold to the NZ public as being necessary to safe guard jobs.
But on the receiving the bail out Solid Energy immediately implemented a savage program of hundreds of job lay offs.
So where did the bail out money go?
In fact the money went straight into the coffers of the foreign banks that had invested in Solid Energy to cover up to 70% of their losses.
However one of the foreign banks, Tokyo-Mitsubishi, unhappy with the generosity of the state, wanted more, in fact they wanted the taxpayer to cover 100% of their losses.
So Tokyo Mitsubishi took the government to court protesting what they called a “hair cut” resulting from their losses in Solid Energy.
But under the TPPA it will all be different, Tokyo-Mitsubishi could, (and may still), take a case against us to a secretive off-shore tribunal of the multinationals’ own creation, and most likely win it.
Thanks for that, Pat. I’d forgotten about that incident… A timely reminder, I think.
[…] blogpost was first published on The Daily Blog on 17 October […]
It is a serious mistake to equate a statement about Investor-State Dispute Settlement (ISDS) proceedings with the judicial review of administrative decisions. Shanghai Pengxin’s review cannot ground an award of damages. Rather, the High Court’s inquiry is confined to whether the government stayed within the legal parameters crafted by Parliament (just like Kelsey’s recent challenge regarding Groser’s misapplication of the Official Information Act 1982).
Moreover, Shanghai Pengxin has been involved in an earlier attempt to quash its successful application to acquire sensitive land under the Overseas Investment Act 2005 (see Tiroa E and Te Hape B Trusts v Chief Executive of Land Information [2012] NZHC 147). Judicial review is an important check on government decisions that can swing both ways – interested parties can challenge government decisions giving consent to foreign purchasers of sensitive land. Challenging ministerial decisions through the domestic courts is business as usual. Indeed, the latest draft of the TPPA’s investment chapter specifically preserves our current way of doing things: Annex II-H states:
“A decision under New Zealand’s Overseas Investment Act 2005 to grant consent, or to decline to grant consent, to an overseas investment transaction that requires prior consent under that Act shall not be subject to the dispute settlement provisions under Section B (Investor-State Dispute Settlement) or Chapter BBB (Dispute Settlement) of this Agreement.”
Nonetheless, I have spent the last eight months researching the constitutional implications of the TPPA and I am wholly unconvinced by the “we’ve never been sued under ISDS” assurances. While the agreement opens pathways for litigious U.S.-based investors, the real effect of the TPPA is likely to be a conspicuous absence of state intervention rather than an increase in ISDS proceedings. The strong protection of property creates the threat of legal challenges which, coupled with the inter-jurisdictional mobility of capital, disciplines legislative innovation and steadily institutionalises neoliberal values within the core organs of government. Such threats need not be explicit. Vague investment protections and broad arbitral discretion creates sufficient uncertainty to suppress policy experiments.
If you are interested in my general observations, follow the link:
It is a grave analytical mistake to equate a statement regarding Investor-State Dispute Settlement (ISDS) proceedings with judicial review of administrative decisions. Judicial review cannot result in monetary damages.
Even if that were true, Oliver, it can still result in a change in government policy, which almost always has far-reaching fiscal, economic, social, or environmental costs. Otherwise there would be no point.
Moreover, Shanghai Pengxin has already been involved in an attempt by a third party to quash its successful application to purchase sensitive land in New Zealand (see Tiroa E and Te Hape B Trusts v Chief Executive of Land Information [2012] NZHC 147).
In what way was Shanghai Pengxin directly involved in proceedings? If memory serves, that case involved a local consortium of New Zealand businesspeople suing LINZ over the Crafar Farm deal. Shanghai Pengxin were not parties to the legal action. So your example doesn’t fit.
Ahem. Just a quick point. ISD tribunals cover potential profit. As unposed to foreign investment.
Sam
“Even if that were true”? Judicial review of administrative decisions is confined to process. If the executive has made an error in the application of the relevant statutory framework (in this case, the Overseas Investment Act 2005), the High Court simply directs the decision maker to repeat the process by the appropriate standards.
I do not see how the arguments surrounding regulatory chill, which you seem to imply, can be triggered by domestic judicial review. Unlike compensation under ISDS, the applicant does not stand to gain any windfall at the expense of the taxpayer. There is no nexus between the High Court’s preservation of Parliament’s legislative intention and a change in government policy. The point of judicial review is often to try and get a second shot. If the government remains within the boundaries drawn by Parliament when its rejects applications, foreign investors cannot do anything about it. Which is not to say that there aren’t other avenues through which transnational capital can exert direct and structural influence over New Zealand’s policy engines.
You mentioned that “Our laws now allow foreign interests to be on an equal footing with New Zealand citizens.” That’s nothing new. Indeed, this is the preferred alternative (the Calvo doctrine) to the parallel legality of ISDS in which foreign investors are furnished with beefed-up property rights unavailable to New Zealand citizens. It is through ISDS, not our domestic procedures, that foreign investors may stimulate undesirable policy changes and “far-reaching fiscal, economic, social, or environmental costs.”
The reason I am drawing attention to these distinctions is to ensure that the concerns surrounding ISDS can be clearly articulated. Conflating ISDS with domestic judicial review offers ammunition to proponents of the TPPA who seek to deflate its serious implications (in the same way that the pseudo-constitutional “due authority” conspiracy detracted from very real constitutional reforms promised by the impending treaty, such as the introduction of a backdoor takings doctrine that Parliament and the courts have historically rejected). Lucid critique requires a sharpened target.
In relation to your second point, the proceedings involved Milk New Zealand Holdings Limited. This link should show Shanghai Pengxin’s indirect (yet intimate) involvement: http://www.spcs.org.nz/milk-new-zealand-holding-ltd-its-new-hong-kong-shareholder-and-lochinver-sale/
“Indirect yet intimate” is not the same as being party to a legal case.
Besides which, having read the blogpost you refer to, I can’t see any connection to the New Zealand consortium’s case against LINZ. If it’s there, I missed it. In which case, feel free to copy and paste it for our benefit.
The rest of your somewhat lengthy, wordy, opinion piece is just that – opinion. You present no facts to counter the points I have raised. (By the way, try using paragraphs. More user-friendly to read.)
Ok. I’ll try to keep it short…
The following link shows that Milk New Zealand Holdings Limited is a wholly owned subsidiary of Shanghai Pengxin Group Limited.
This point was omitted by the Supreme Court in the final judgment but is discussed at length by the High Court and Court of Appeal. So I think it’s more than fair to draw attention to Shanghai Pengxin’s involvement in the case.
You are right to suggest that my comment is an opinion. And if it is lengthy and wordy, it reflects the complex subject matter. Your initial post conflates New Zealand administrative law and Overseas Investment Office applications with international investment law. I have knowledge and experience grappling with these three areas. That is how I have formed the present opinion.
A chief qualm is your suggestion that we should consider 15 October 2015 some sort of year zero because sovereignty is now being “forfeit in the pursuit of global finance.” Non-New Zealanders have ALWAYS had access to domestic judicial review remedies so long as a government decision affects their rights (this is called “standing”).
To say that the only difference between the Lochinver review and ISDS is the relative transparency of the proceedings in flatly false. The Lochinver case will consider whether the government made an error of law under New Zealand’s applicable legislation. That’s it. On the other hand, ISDS proceedings can consider whether popular policy changes violate broad standards of treatment and/or constitute indirect expropriation. If government actions have changed the nature of an investment, including its expected profitability, investors can collect millions in damages. See the difference? I could go on.
I’m disheartened that my attempt to steer debate away from red herrings has been so misunderstood.
So we are clear on this; Milk New Zealand Holdings Limited/Shanghai Pengxin Group Limited were not parties to the legal action brought by Tiroa E and Te Hape B Trusts v Chief Executive of Land Information. So your original claim in your October 22, 2015 4:44 pm post, where you state;
Moreover, Shanghai Pengxin has been involved in an earlier attempt to quash its successful application to acquire sensitive land under the Overseas Investment Act 2005 (see Tiroa E and Te Hape B Trusts v Chief Executive of Land Information [2012] NZHC 147)
Ah, I see the confusion here – not helped by the wording of your October 22, 2015 4:44 pm post.
Note the highlighted parts of your post, which infers that Shanghair Pengxin (or it’s subsidiary) was the initiater of the suit/review;
Moreover, Shanghai Pengxin has been involved in an earlier attempt to quash its successful application to acquire sensitive land under the Overseas Investment Act 2005 (see Tiroa E and Te Hape B Trusts v Chief Executive of Land Information [2012] NZHC 147). Judicial review is an important check on government decisions that can swing both ways – interested parties can challenge government decisions
giving consent to foreign purchasers of sensitive land. Challenging ministerial decisions
through the domestic courts is business as usual.
You need to be clearer in what you are asserting. Others may not be as familiar with the intracacies of legal labyrinths as you.
Secondly, I note that Shanghai Pengxin (or it’s subsidiary) were not the instigators of the lawsuit/review.
The action brought by Tiroa E and Te Hape B Trusts was an instance of New Zealanders protecting the country’s asset-base from foreign purchase.
So I ask, aside from filling this page with your obvious interest in legalese, jargon, and obscure references – what’s your point?
I can see how that passage is confusing. The point of citing the case was to show that (a) Shanghai Pengxin’s interests have been the subject of review before and that (b) New Zealanders can bring actions to challenge foreign acquisitions as well. Thus, unlike ISDS, judicial review of OIO decisions is not so new and scary. To use the word “sue” mistakes the nature of judicial review because it does not involve arguments on the merits leading to compensation. It’s just about process.
Apologies if my posts have seemed obscure. My point has been one of clarification. I suspect we agree on the political substance at stake; i.e. ISDS is a serious concern. But judicial review of administrative decisions in our domestic courts is not evidence of “Key’s TPPA falsehoods”. I’d like to think that having an ally highlight these mistakes is preferable to them becoming grist for the mill of an enemy’s arguments.
Key is like King Midas but everything Key touches turns to shit …
Frank, although a detailed post the conclusion is disappointing by your standards. Whatever you say you cannot ignore the poll results. The latest Roy Morgam Poll has National at 50% .
You may not like what John Key stands for but based on poll results you need to explain more clearly what the benefits of kicking out the National Government will achieve for middle NZ. You are yet to convince me!
Grant – Sorry, I fail to see what connection you’ve made between latest Roy Morgan poll results and the contents of my story. If you dispute any of the facts I’ve presented, feel free to state the error, and the correction.
Thank you Frank.
I believe NZ Public are in dire need to be reminded of facts and evidence at all times given National and Key’s control of MSM and their spending on social media propaganda machine.
In reply to our fellow pro Key et Co, and the polling of recent years (under Key et Co), Dictators of the MidEast and Gulf such as Mubarak, Ghaddafi and others were all polling an impressive 90+% at all times (?!) I strongly believe that Key et Co are following the lead of those “legendary leaders”.
I know this is new to our formerly corrupt-free Aotearoa, however, it is now evidenced and backed by recent events, positions and stands taken by Key et Co undermining, belittling and insulting the Kiwi Public.
Even though I never met Professor Jane and in relation to her efforts re the TPPA, I admire what she has done and continues to do to expose unlawful actions taken by Key et Co (including Groser), David Parker with the Saudi bribe, Phil Goff re our poor troops left in the middle of a nasty war zone in Iraq.
Seriously, every one needs to reflect on what has been happening in NZ. The sale of infrastructure assets, the sale of our sovereignty in NZ.
May God defend Aotearoa since there seems to be some fellow Kiwis who don’t seem to care.
National Party social media action team strikes again!
I keep telling you guys you’re going to have to sharpen up your act if you want to have any success around here but that was worse than thet last attempt I saw.
Ah yes, those poll results again…
Who would like such a result and can afford to pay for it? National & co.
Where polls are about advertising/manipulating as much as or rather than informing, isn’t there motivation to weight them to produce a desired result?
Buy a poll result in advance. Do something people won’t like. Then bring out your manufactured result to show the people their friends must have liked it after all. Divide and rule. Please don’t tell me the masters of dirty politics would never stoop so low – for them it wouldn’t be very low at all.
Isn’t it true that anyone who can afford it is free to commission a poll? Has any polling company a public code of ethics that would prevent them from manipulating for a desired result if that was what the customer asked for?
Type in ‘How to get the desired poll result’ and have a field day.
The onus is no longer on anyone to prove a poll was rigged – there is so much motivation, capability and opportunity for doing so.
The onus has shifted, just most have yet to realise it. No poll should now be cited as providing impartial evidence of anything without some form of independent certification.
Grant of Wellington – your post above has to be the worst non sequitur I’ve seen online for a while. Wierd.
Grant of Wellington, that doesn’t make any sense at all.
Key states “We’ve never, ever been sued”.
Past tense, and correct. New problem. This will be the first time NZ is going to be sued. Yet again, Key still feels smug.
Let’s see how smug Key is, after he may lose his cases against Eminem, the ponytail pulling case, and the Lochinver case.
His very own lies are going to cost him dearly, possibly to the point of personal bankruptcy.
Will you still be feeling so smug then John?
Actually …you have raised a very good and pertinent point there…
Now…Eminem is a musician , right?…. in fact , …a very famous one…
And this Key character has just become a signatory to the TTPA… in which case not only do corporations seek to potentially sue a govt if that govt passes legislation that inhibits their profit making potential…
But also seeks to protect COPYRIGHT .
That’s right , folks – COPYRIGHT.
INTELLECTUAL PROPERTY.
And right again , folks ….Eminem is an American musician…the home of Hollywood’s drawing up of the TTPA to be ratified by their Congress…
Therefore…straight away we have the potential for COPYRIGHT INFRINGEMENT by the National party and the potential legal case for suing that party…
Is there only one rule for people like Dotcom and another for little Keesey – Weesey?
Just what does the TTPA cover under COPYRIGHT INFRINGEMENT???
Lets kick the ball off starting now with the National party – except that they are a party … not particularly defined in the greater sense as a govt but a party…
Lets hear it from the ‘ one rule for all ‘ troughers on THIS one….
Indeed, Katipo…
The TPPA will extend copyright from 50 to 70 years, and patents on medicines by 5 or 8 years.
It’s hard to see how tightening up on copyright and patents fits the definition of trade liberalisation.
Then again, more than one person has called thye TPPA as trade management rather than trade liberalisation.
Key’s admission that government will have to pay more for medicines as the length of patents on pharmaceuticals is increased is also cause for concern;
1. When government has to pay more for medicines, the immediate question is; what other part of Vote Health will they ‘raid’ to pay for higher pharmaceutical costs?
2. If the extra cost is taken from PHARMAC’s budget, what other medicines will be dropped as PHARMAC struggles to balance it’s own spending budget?
3. Will government increase PHARMAC’s budget to cater for higher pharmaceutical costs? In a pigs eye, they will.
4. When Key says that “government” will pay for higher pharmaceutical costs, they means we, the taxpayer will pay more.
5. How long before National increases the costs of subsidised medicines from $5 to $6, $7, $8, $9, etc, per prescription? They’ve already increased prescription charges once, from $3 to $5, in early 2013.
6. What extra cost will PHARMAC have to carry to pay for “reviews” of it’s decisions, where Pharmaceutical Corporations can challenge PHARMAC ecisions? Groser has already admitted that the cost will be $4 million to set up, and $2 million annually thereafter. Will “government” (ie, us, the taxpayer) pay for that? Or will that come from PHARMAC’s budget as well?
7. What other ‘fish hooks’ are there, we don’t know about?
Keys has also said McCukky had to bribe a Saudi Prince so he wouldn’t sue us. So meh. We haven’t been sued
Does Key really care about the average New Zealander?
No
Hahahaa….yessss…. I read that in the Herald and thought…. ” what the hellll ????!!!!?? ”….
Now it really isn’t funny at all – but the fact that there was this surreptitious little article on it ( Lochinver ) and at the same time so much ballyhoo about Key reassuring the public it wont happen to us….
I’m sorry but I find myself full of dark mirth at the hypocrisy of Key and his govt.
Nothing surprises me about this liar anymore. Nothing.
New Zealanders…I’ve said it before and Ill say it again… you have been right royally duped and conned to the back teeth and beyond by this pony tail pulling little wimp – the ” GET SOME GUTS !!” guy who pulls women’s hair….
And if you cant see how much you’ve been duped over this treasonous little mans tenure in office you are either incredibly naive or just incredibly bone lazy to do a proper background check.
You made your bed – now lie in it.
And don’t moan when your kids have to still live at home with you when their married 40 year old’s with their own kids either – and cant get into their own first home.
We warned you , you ignored the warnings.
Congratu – frikken – lations.
You are not seriously arguing that:
1. a judicial review under New Zealand law by a party directly affected by a government decision is the same as a dispute settlement process under a treaty;
2. foreign owned companies should not be able to take judicial review action;
3. ministers should be able to make any decisions they like under a statutory power with no recourse to the courts by those affected;
4. the right to seek judicial review has anything whatsoever to post-1984 economic policy?
Are you???
If you are you are woefully ignorant.
I suspect you know that you are not even remotely comparing apples with apples here and are just trying to inflame your more ignorant readers.
Matthew, in your little tanty-ranty, you’ve over-looked the following’
A. We have a free trade agreement with China. Shanghai Pengxin is a Chinese company.
B. Whether or not the lawsuit is taken under a FTA or local judicial review is immaterial. The point is that, under globalisation, we are vulnerable to such litigation. The China-NZ FTA facilitates litigation.
C. I sure as hell can’t recall “judicial reviews” prior to 1984. Can you provide examples?
A. The China FTA has nothing whatsoever to do with this litigation.
B. It is highly material whether the litigation is taken under the FTA or the common law, given you are trying to make a case against FTAs.
C. You can’t be serious. Ever heard of Fitzgerald v Muldoon? Judicial review is an ancient right. To avoid writing such rubbish again on this topic, see:
* http://www.lawyerseducation.co.nz/site/nzlaw/files/2010%20Courses/JRW10%20Book%20Introduction.pdf or
* http://www.conferenz.co.nz/whitepapers/judicial-review-an-update
Mathew; your first link (http://www.lawyerseducation.co.nz/site/nzlaw/files/2010%20Courses/JRW10%20Book%20Introduction.pdf) carries no mention of foreign investors suing the NZ Government. It seems to be a legal tract on the generalities of legal reviews. The article on reviews – INTRODUCTION: WHAT IS JUDICIAL REVIEW? – states in part;
As I understand it, if the law does not permit foreign ownership (or even bans it outright), then an overseas investor has no grounds to seek a review. You can’t review something that is not reviewable. (In plain english; if foreigners have no right to buy land in New Zealand, then a foreign investor can’t sue. See my comment at October 18, 2015 at 10:44 pm to Nick.)
Conversely, because the law/international treaties currently permit foreign land ownership/investment, then Shanghai Pengxin has legal remedies available to it.
Your reference to Fitzgerald v Muldoon is not a foreign lawsuit either. According to Wikipedia (https://en.wikipedia.org/wiki/Fitzgerald_v_Muldoon ), Fitzgerald was a local Public Servant working for the NZ Government. Where is the involvement of foreign interests? I fail to see it.
Your second link (http://www.lawyerseducation.co.nz/site/nzlaw/files/2010%20Courses/JRW10%20Book%20Introduction.pdf) appears to relate to Environmental Defence Society Inc v South Pacific Aluminium Ltd and the proposed smelter at Aramoana (http://archway.archives.govt.nz/ViewRelatedEntities.do?code=19362&relatedEntity=Item). (No further details can be found.)
This case appears to be a NGO environmental group sueing a company planning to set up a smelter in Aramoana. Again, this does not constitute a lawsuit involving the government.
So it appears (on the face of it) that your “examples” either have no bearing, or are misleading.
“As I understand it, if the law does not permit foreign ownership (or even bans it outright), then an overseas investor has no grounds to seek a review.”
If foreign ownership was not permitted, then there would not have been an application in the first place. NZ’er own huge tracts of land offshore, so I see no problem with foreign investors owning land in NZ.
And that is part of the problem.
That’s because you haven’t read my blogpost, Sandfly. The entire story is on overseas lawsuits. That is the context – not whatever you or Matthew are inventing.
Learn to read.
It’s commen for people to think Treaties are apart of domestic law. It is not. Treaties are apart of international law and has emplications for jurisdictions that the british settled because of common law, that includes jurisdictions that don’t have treaties.
We can not ignore the constitution of it all. This is why the high court argued for wider powers of review in the 70’s.
I read Matthew’s so-called examples, Sandfly, and they are fallacious. One is a general treatise on judicial reviews, one refers to a judicial review taken by a Wellington civil servant, and the last one refers to an environmental group suing an aluminium refinery.
None of which are examples of foreign corporations suing the NZ government.
So you obviously haven’t read Hooton’s examples either. Or are just trolling.
Actually Sandflypoint, Matthew didn’t provide any pertinent examples. The three he gave weren’t even remotely relevant.
Did you actually read what Matthew wrote and his references? Or are you just playing silly buggers with us?
So far, neither you nor Matthew have proven your position, whereras Frank has given specifics.
Matthew, I’ve checked the links you gave and looked up Fitzgerald v Muldoon.
The links don’t show any reference to foreigners suing our government and Fitzgerald was a local civil servant who got pissed of at Muldoon because of how he handled Labour’s super scheme in the 1970s. How the Fitzgerald case relates to foreigners suing us is a mystery to me.
So you’ve either picked the wrong examples or were hoping no one would check the examples you gave? Either way, you haven’t proven your case and Frank’s argument stands.
Hooton, the “Chinese-NZ FTA has nothing to do with the review”???
Wow, I guess splitting hairs is a whole new ballgame we have to deal with then, eh?
As long as it’s only a “judicial review”, then it doesn’t count?
I guess we’ll have to wait till Chinese actually sues us, I guess. No, wait, that won’t count because [insert reason here]
Matthew, I’ve followed your links and read up on the Fitgerald vs Muldoon case and can’t see any reference to foreigners suing the NZ government.
Have you got the right references? Or were you hoping no one would check?
Those are not answers to any of his questions.
You are clearly just obfuscating here. The Chinese FTA has nothing to do with this judicial review action, so I’m not sure why you are conflating the two.
My answers are fairly clear, Nick.
I am conflating the two because – despite your and Matthew’s claims to the contrary – they are inter-related. A judicial review is only possible because we have allowed land to be bought and sold by overseas interests. If that right did not exist, litigation would not be possible. There would be no basis on which to sue.
Just as, I would point out, no New Zealander can sue the Chinese government for not being permitted to buy land in their country.
I trust that is sufficiently clear?
I think Hooton is being sarcastic and implying that he can never be ignorant and false flag stuff distracts from TPPA, as if there could only be one important thing happening at a time.
Judicial review can not be overruled by an independent judiciary with less than an infinite number of appeals.
The High Court has the power of judicial review simply by being the highest court in the land. If you placed another court above them, then *they* would have the power of review, instead of the HC. I would rather the courts not change to advance corporate agenda.
I’m just wondering when it became okay for ISD tribunals to make rulings without telling people what they are [thats code for it is not ok].
We will have to wait until the full TPPA text is revealed and how it actually changes the way NZ is to amongst other things be prevented from regulating the finance sector, otherwise the HC sets the precedence [that means if you’ve got a problem with the government, the High Court is the place to go to sort it out].
The Chinese FTA has nothing to do with the Shanghai Pengin lawsuit??
Really??
So, Nick, it’s only a sheer coincidence that Shanghai Pengxin is a CHINESE company and the NZ-China FTA allows for their nationals and corporations to sue us??
Wow. What an amazing coincidence.
The China-NZ FTA doesn’t “allow” Chinese nationals to sue New Zealand. Chinese national affected by the decision of a New Zealand minister or official have always been able to seek a judicial review of that decision. There is no link between the two things at all. The New Zealand Government is regularly sued by foreign interests under New Zealand law, and I have never heard anyone (until perhaps Frank, now) argue they should not have this right. Key was clearly referring to the ISDS provisions in 13 of New Zealand’s treaties which have never been used. When someone does use these provisions, then Frank will be able to say Key was wrong.
The China-NZ FTA certainly does have an ISDS provision:
http://www.chinafta.govt.nz/1-The-agreement/2-Text-of-the-agreement/12-Chapt-11-Investment/0-section11-part2.php
Were you not aware of this, Matthew?
Matthew, Frank is nailing your butt.
Not only are you not proving your case, but you’re coming across as being underhanded with your “facts”.
Interestingly, though, I’m learning a lot more about FTAs than I ever have.
Thanks Frank and Priss too…
I am rather bemused about Matthew’s persistence in manipulating facts, leading to deceiving the general readership of this blog.
Matthew, I have become more and more impressed with TDB because it is probably one of very few forums that publish the facts as they are.
If you really care about Aotearoa and our fellow Kiwis, please adhere to ethical debate to allow us achieve a productive and positive outcome.
There is no room for misleading and deceiving individuals here.
Yours sincerely,
A Keen Kiwi TDB fan.
Matthew – do you understand how many of us feel you need to find a new career and we do not trust your ego-centered and naive defense of a leader who lies and can also not be trusted. He is leading a train wreck of a govt. and TPPA is about as rotten as it gets. Full of defenses and protections of the very mega-corporations that rape and take from land and seas all over the world. They are not concerned with workers and the environment – ONLY PROFITS AND PROTECTING THEIR PROFITS.
Frank is a wise and trustworthy man whom I and many others learn a lot from every time he puts his hands to his keyboard. You, on the other hand, are someone we avoid because we learn nothing from such a biased and defensive
perspective. Why not apply for a job as a lobbyist for the corporations or a puppet for jonkey donkey ? You are no authority in our minds.
“2. foreign owned companies should not be able to take judicial review action;”
Correct. Foreign owned companies are not governed by NZ law so should NOT be able to use the NZ legal or enforcement systems.
The frightening thing about the TPPA as far as we know is that it will provide an alternative legal system which is not subject to any democratic control. Those that have the most power will then control it. They will then use the government to enforce that control. (NZ signed.) Hence rule in NZ by overseas corporation as they will have the most power.
The consequences of this are extremely serious for sovereignty and democracy.
And this government has signed up for some beads and blankets and most NZ’ers do not seem to have a problem. Goodbye any chance of controlling our own destiny. Ask any native peoples how that works out.
Well Mr. Hooten Tooten why don’t we just sell the entire country to the highest bidder? The global Ashkenazi banking mafia, the Saudis, the Chinese? What does it really matter? For a reasonable amount of trillions we could all get a payout. All of you who just love to sell off will be more than happy to stay and those of us who find it all rather abhorrent can go. We could agitate for another total sell off in another country. Australia for example, thereby starting a stupendous national global sell out ponzi scheme in which we would be the win win winners because we started it all first. Never mind about anybody else.
We could naf off and start a colony on Mars perhaps. Anything would be preferable to watching the manipulated destruction and degradation of all humanity and anything good or decent human beings ever acquired in the way of civilization.
You may delight in kow towing Mr. Hooten Tooten, with your arse as high up in the air as you can manage but others have a less sullied perspective.
I like your Mr. Hooten Tooten ! ! funny and appropriate and he even does seem more like a comedian we laugh at than someone with authority status.
Hooten.
Should be another cheque from the National Party in your letterbox any day now. “Ignorant readers” eh. Spoken like the true condescending little weasel you are. Selected media presstitutes like you are part of the problem why we dont have honest, informed debate within this country’s media conduits. It is discussed in such a limited, spectrum as to delude people they are actually participants in a full and honest debate, of which it is neither. If your views were totally anti Key, how much air time do you reckon you would honestly get? Ask Bomber Bradbury he will be able to guide you.
Are you seriously arguing that International corporations should have the right to sue the NZ government at a cost to NZ taxpayers, if NZ laws could impede their profits? It’s that simple, dont attempt to make it anything else. Is this a fair and just system of democracy?Should the prize of Trade be gained at the expense of our Sovereignty?
Are you privvy to all the transcripts of what has been negoiated in total secret? Please post it if you do, so all us unwashed , ignorant masses can be as enlightened as you.
[…] more… […]
Ironically in amongst a lot of other land sales to foreigners going unnoticed I think it highly probable that this sale was rejected as publicity stunt, an appeasement to the half asleep Kiwis that our government really does care about keeping NZ land in New Zealanders hands.
Of course they don’t care and because it is likely this deal of all of them should have gone ahead, the sale will proceed or we will end up paying compensation or a bribe, depending on who is involved, to make it go away.
Oh well, in the world of doublespeak and smoke and mirrors shit happens and by the time they buy the farm no one will be listening anyway and we will all be a little bit poorer. And as they say the National Party, “Job done”!
I think you’re spot on, Xray. There was no real purpose in declining the sale; it was a publicity stunt. I think even Matthew Hooten conceded that on Radio NZ’s ‘Nine to Noon” political panel.
In a way, Hooten does have one point; if the Crafar farm sale; the Shania Twain purchase; the endless sale of farms to investors from US Harvard University; etc, all went through – the directors of Shanghai Pengxin are right to be miffed. Why were they turned down whilst everyone else in scrambling for lollies in the sandpit?!
Plus Shanghai Pengxin have been Big Donors to the National Party, as I reported in April 2013; https://fmacskasy.wordpress.com/2013/04/25/doing-the-business-with-john-key-heres-how-part-rua/
It’s Hooton, not Hooten.
I laughed wryly at his dig at the “ignorant” readers in here, after all, his team have worked very hard at keeping the population uninformed and at degrading public news services.
I agree. Journos like Hooten need to consider going out to pasture and finding other work.
So much ego and pro Natz bias that we do not watch him anymore.
Applying for judicial review is not quite the same as “suing” someone. But nevertheless, it shows again, that government agencies and offices can be taken to court. As private enterprises and well resourced investors tend t have deeper pockets, and are able to get expert lawyers, they will have some good chances of getting what they want.
Key is a BS artist, as we know. I heard on Mediawatch on RNZ tonight, how there was a damaging report on the Taji Camp in Iraq, which came out days before Key travelled there with his “embedded” journalists (ready to bark when he allows them to bark). As NZ First’s Ron Marks pointed out to media, it is hard to believe that the government and Key did not know about the report.
It would have shown the PR exercise of Key’s visit to the NZ Army trainers needs to be seen much more critically, as for their success and potential effectiveness to make a difference there.
That is just one other bit worth remembering, and the list is getting longer by the day, where John Key tells us BS, and misleads both MSM and the public in his usual, casual manner.
Shame on Key and Nats, shame on them.
And the Devil did meet Robert Johnson at the crossroads. And Robert Johnson did say to the devil, “What are about the fact that you might take my soul in exchange for making me the greatest bluesman that ever lived”. And the Devil did say to Robert Johnson “But look, at the end of the day….”
Just because we have never been sued does not mean we won’t be in the future. Right now – mega – corporations are suing states in the US for lost profits.
Shanghai Pengxin are not suing pursuant to any trade agreement, in fact they are not ‘suing’ at all. This is a judicial review, which is doing nothing more than ensuring our politicians followed the law. Your stretch on this is so long it would do AJ Hackett proud.
[Sandfly, you have email. Please respond to my request. – ScarletMod]
Sandfly, it’s fascinating to see the convoluted hair-splitting going on by you, Matthew, and NickCrampon. I think this is a taste of what is to come from National when more lawsuits – *cough*, sorry, “Reviews” – start rolling in.
Although as I’ve pointed out, most of the time, lawsuits and “reviews” aren’t necessary. As in the plain-packaging case, National simply rolls over and complies.
Your attempts at blurring the situation is a waste of time on your part. People aren’t stupid (contrary to Matthew’s assertion on October 18, 2015 at 12:45 pm) and see this as silly attempts to cloud the issue.
Judicial review = lawsuit, Mr Sandfly. You can split hairs till the dairy cows come home, but it’s still a lawsuit.
Sandfly, you’re nit-picking. Whether you call it a lawsuit or judicial review, the outcome is the same and the government’s decision can be overturned.
So you and Hooton are being mischievous by trying to cloud the issue. Neither of you are to be trusted.
Sandfly, please tell us you were being sarcastic or are you that naive?
Do you know the costs, implications and consequences of judicial reviews or challenging outcomes in the judicial system? Have you ever been a party in a law suit? Not to mention one with a state?
Sandflypoint, “suing” and “judicial review” are one and the same thing if they challenge (and succeed!!) a government’s decision. As I understand it, a “judicial review” can set aside a government decision. So if that’s not a lawsuit by any other name, then I don’t know what is.
You are muddying the waters and deliberately so, I think.
Thanks again Frank for a well thought out and informative piece.
You are appreciated !
But this is not the first time either, proving John Key to be a double liar.
In 2013 when Solid Energy was first declared “Technically Insolvent” the government said that would “bail out” the troubled coal miner to the tune of $155 million.
This abuse of public funds was sold to the NZ public as being necessary to safe guard jobs.
But on the receiving the bail out Solid Energy immediately implemented a savage program of hundreds of job lay offs.
So where did the bail out money go?
In fact the money went straight into the coffers of the foreign banks that had invested in Solid Energy to cover up to 70% of their losses.
However one of the foreign banks, Tokyo-Mitsubishi, unhappy with the generosity of the state, wanted more, in fact they wanted the taxpayer to cover 100% of their losses.
So Tokyo Mitsubishi took the government to court protesting what they called a “hair cut” resulting from their losses in Solid Energy.
“Bank Threatens Government”
Fortunately for us the New Zealand High court ruled against the bank and for the government.
“Bank loses Case Against Government”
But under the TPPA it will all be different, Tokyo-Mitsubishi could, (and may still), take a case against us to a secretive off-shore tribunal of the multinationals’ own creation, and most likely win it.
Thanks for that, Pat. I’d forgotten about that incident… A timely reminder, I think.
[…] blogpost was first published on The Daily Blog on 17 October […]
It is a serious mistake to equate a statement about Investor-State Dispute Settlement (ISDS) proceedings with the judicial review of administrative decisions. Shanghai Pengxin’s review cannot ground an award of damages. Rather, the High Court’s inquiry is confined to whether the government stayed within the legal parameters crafted by Parliament (just like Kelsey’s recent challenge regarding Groser’s misapplication of the Official Information Act 1982).
Moreover, Shanghai Pengxin has been involved in an earlier attempt to quash its successful application to acquire sensitive land under the Overseas Investment Act 2005 (see Tiroa E and Te Hape B Trusts v Chief Executive of Land Information [2012] NZHC 147). Judicial review is an important check on government decisions that can swing both ways – interested parties can challenge government decisions giving consent to foreign purchasers of sensitive land. Challenging ministerial decisions through the domestic courts is business as usual. Indeed, the latest draft of the TPPA’s investment chapter specifically preserves our current way of doing things: Annex II-H states:
“A decision under New Zealand’s Overseas Investment Act 2005 to grant consent, or to decline to grant consent, to an overseas investment transaction that requires prior consent under that Act shall not be subject to the dispute settlement provisions under Section B (Investor-State Dispute Settlement) or Chapter BBB (Dispute Settlement) of this Agreement.”
Nonetheless, I have spent the last eight months researching the constitutional implications of the TPPA and I am wholly unconvinced by the “we’ve never been sued under ISDS” assurances. While the agreement opens pathways for litigious U.S.-based investors, the real effect of the TPPA is likely to be a conspicuous absence of state intervention rather than an increase in ISDS proceedings. The strong protection of property creates the threat of legal challenges which, coupled with the inter-jurisdictional mobility of capital, disciplines legislative innovation and steadily institutionalises neoliberal values within the core organs of government. Such threats need not be explicit. Vague investment protections and broad arbitral discretion creates sufficient uncertainty to suppress policy experiments.
If you are interested in my general observations, follow the link:
https://www.facebook.com/oliver.hailes/posts/10201096396967452?notif_t=like
Even if that were true, Oliver, it can still result in a change in government policy, which almost always has far-reaching fiscal, economic, social, or environmental costs. Otherwise there would be no point.
In what way was Shanghai Pengxin directly involved in proceedings? If memory serves, that case involved a local consortium of New Zealand businesspeople suing LINZ over the Crafar Farm deal. Shanghai Pengxin were not parties to the legal action. So your example doesn’t fit.
Ahem. Just a quick point. ISD tribunals cover potential profit. As unposed to foreign investment.
Sam
“Even if that were true”? Judicial review of administrative decisions is confined to process. If the executive has made an error in the application of the relevant statutory framework (in this case, the Overseas Investment Act 2005), the High Court simply directs the decision maker to repeat the process by the appropriate standards.
I do not see how the arguments surrounding regulatory chill, which you seem to imply, can be triggered by domestic judicial review. Unlike compensation under ISDS, the applicant does not stand to gain any windfall at the expense of the taxpayer. There is no nexus between the High Court’s preservation of Parliament’s legislative intention and a change in government policy. The point of judicial review is often to try and get a second shot. If the government remains within the boundaries drawn by Parliament when its rejects applications, foreign investors cannot do anything about it. Which is not to say that there aren’t other avenues through which transnational capital can exert direct and structural influence over New Zealand’s policy engines.
You mentioned that “Our laws now allow foreign interests to be on an equal footing with New Zealand citizens.” That’s nothing new. Indeed, this is the preferred alternative (the Calvo doctrine) to the parallel legality of ISDS in which foreign investors are furnished with beefed-up property rights unavailable to New Zealand citizens. It is through ISDS, not our domestic procedures, that foreign investors may stimulate undesirable policy changes and “far-reaching fiscal, economic, social, or environmental costs.”
The reason I am drawing attention to these distinctions is to ensure that the concerns surrounding ISDS can be clearly articulated. Conflating ISDS with domestic judicial review offers ammunition to proponents of the TPPA who seek to deflate its serious implications (in the same way that the pseudo-constitutional “due authority” conspiracy detracted from very real constitutional reforms promised by the impending treaty, such as the introduction of a backdoor takings doctrine that Parliament and the courts have historically rejected). Lucid critique requires a sharpened target.
In relation to your second point, the proceedings involved Milk New Zealand Holdings Limited. This link should show Shanghai Pengxin’s indirect (yet intimate) involvement:
http://www.spcs.org.nz/milk-new-zealand-holding-ltd-its-new-hong-kong-shareholder-and-lochinver-sale/
“Indirect yet intimate” is not the same as being party to a legal case.
Besides which, having read the blogpost you refer to, I can’t see any connection to the New Zealand consortium’s case against LINZ. If it’s there, I missed it. In which case, feel free to copy and paste it for our benefit.
The rest of your somewhat lengthy, wordy, opinion piece is just that – opinion. You present no facts to counter the points I have raised. (By the way, try using paragraphs. More user-friendly to read.)
Ok. I’ll try to keep it short…
The following link shows that Milk New Zealand Holdings Limited is a wholly owned subsidiary of Shanghai Pengxin Group Limited.
http://milknewzealand.com/about-us/our-company-structure-in-new-zealand/
This point was omitted by the Supreme Court in the final judgment but is discussed at length by the High Court and Court of Appeal. So I think it’s more than fair to draw attention to Shanghai Pengxin’s involvement in the case.
You are right to suggest that my comment is an opinion. And if it is lengthy and wordy, it reflects the complex subject matter. Your initial post conflates New Zealand administrative law and Overseas Investment Office applications with international investment law. I have knowledge and experience grappling with these three areas. That is how I have formed the present opinion.
A chief qualm is your suggestion that we should consider 15 October 2015 some sort of year zero because sovereignty is now being “forfeit in the pursuit of global finance.” Non-New Zealanders have ALWAYS had access to domestic judicial review remedies so long as a government decision affects their rights (this is called “standing”).
To say that the only difference between the Lochinver review and ISDS is the relative transparency of the proceedings in flatly false. The Lochinver case will consider whether the government made an error of law under New Zealand’s applicable legislation. That’s it. On the other hand, ISDS proceedings can consider whether popular policy changes violate broad standards of treatment and/or constitute indirect expropriation. If government actions have changed the nature of an investment, including its expected profitability, investors can collect millions in damages. See the difference? I could go on.
I’m disheartened that my attempt to steer debate away from red herrings has been so misunderstood.
So we are clear on this; Milk New Zealand Holdings Limited/Shanghai Pengxin Group Limited were not parties to the legal action brought by Tiroa E and Te Hape B Trusts v Chief Executive of Land Information. So your original claim in your October 22, 2015 4:44 pm post, where you state;
– is at variance with the facts.
While Milk New Zealand Holdings Ltd does not appear in the short title of the decision, it was the fourth respondent in the case. https://www.courtsofnz.govt.nz/cases/tiroa-e-and-te-hape-b-trusts-v-chief-executive-of-land-information/at_download/fileDecision
And Shanghai Pengxin owns 100% of its shares.
Ah, I see the confusion here – not helped by the wording of your October 22, 2015 4:44 pm post.
Note the highlighted parts of your post, which infers that Shanghair Pengxin (or it’s subsidiary) was the initiater of the suit/review;
You need to be clearer in what you are asserting. Others may not be as familiar with the intracacies of legal labyrinths as you.
Secondly, I note that Shanghai Pengxin (or it’s subsidiary) were not the instigators of the lawsuit/review.
The action brought by Tiroa E and Te Hape B Trusts was an instance of New Zealanders protecting the country’s asset-base from foreign purchase.
So I ask, aside from filling this page with your obvious interest in legalese, jargon, and obscure references – what’s your point?
I can see how that passage is confusing. The point of citing the case was to show that (a) Shanghai Pengxin’s interests have been the subject of review before and that (b) New Zealanders can bring actions to challenge foreign acquisitions as well. Thus, unlike ISDS, judicial review of OIO decisions is not so new and scary. To use the word “sue” mistakes the nature of judicial review because it does not involve arguments on the merits leading to compensation. It’s just about process.
Apologies if my posts have seemed obscure. My point has been one of clarification. I suspect we agree on the political substance at stake; i.e. ISDS is a serious concern. But judicial review of administrative decisions in our domestic courts is not evidence of “Key’s TPPA falsehoods”. I’d like to think that having an ally highlight these mistakes is preferable to them becoming grist for the mill of an enemy’s arguments.
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