Capitulation in TPPA-11 raises fears of more to come – Professor Jane Kelsey

‘The so-called Joint Declaration on Inclusive and Progressive Trade, released by New Zealand, Canada and Chile alongside the signing of the resurrected Trans-Pacific Partnership Agreement (TPPA-11), comes across as a desperate attempt to put a gloss on a profoundly unprogressive deal’, says University of Auckland law professor Jane Kelsey.

‘They promise to make the TPPA-11 work for women, indigenous peoples, small and medium enterprises, workers, the environment. Yet those constituencies have repeatedly made it clear that the deal itself is anathema to their interests – most recently in a statement from fifty women’s organisations across ten of the eleven countries, who condemned the signing the agreement on International Women’s Day’.

Professor Kelsey notes that ‘progressive’ Canada presumably refused to sign a side-letter to protect New Zealand from investor-initiated disputes. Instead, Canada, Chile and New Zealand issued another joint statement where they promise to work on the ‘evolving practice’ of investor-state dispute settlement (ISDS), offering suggestions that are mere tinkering with the system.

‘How does that fit with the Prime Minister’s description of ISDS as “a dog” and the instruction to negotiators not to include ISDS in New Zealand’s future agreements?’, she asked. ‘This joint statement does nothing to engender confidence that the government is really serious about ridding us of ISDS.’

Reinforcing those concerns, the government appears to have increased New Zealand’s exposure to ISDS in relation to Singapore. The free trade agreement in 2001 required the government’s consent before a Singaporean investor could bring an ISDS dispute. A new side-letter says Singapore’s investors can use the right under TPPA-11 to sue New Zealand, presumably without its consent.

Other side-letters which Trade Minister Parker said would protect New Zealand from ISDS are from countries whose investments in New Zealand are largely insignificant. Australia had already signed such a letter. Malaysia is the only new signatory with substantial investment in New Zealand. Yet its side-letter does not block Malaysia’s investors from using ISDS. New Zealand would have to positively veto a dispute.

‘This outcome does nothing to assuage our fears that the government will capitulate again on its promises to abandon ISDS and to adopt a new inclusive and progressive approach to international trade relationships and agreements.’