New TPP Leaked Text: National Says ‘Yes’ to Investor Rights to Sue


Another chapter of the secret Trans-Pacific Partnership negotiations has been leaked, heralding “another bad news day for National”, says TPP critic Professor Jane Kelsey.

The draft text of the investment chapter, including the section on investor-enforcement, is undated, but is understood to be recent. A copy is here:

It confirms that National has agreed to let foreign investors like Philip Morris, Pfizer, Warners, Exxon Mobil or Microsoft sue New Zealand for damages in private offshore tribunals, claiming that new laws or policies breach their rights under the agreement.

“My preliminary analysis confirms the concerns raised by lawyers in a recent letter calling for the exclusion of investor’s rights to sue, and much more”, Professor Kelsey said.

“Philip Morris confirmed on the weekend it will use so-called free trade treaties to challenge our smoke free laws. At present, it would need to find a backdoor way to use an existing agreement. This TPP text would throw open the front door to them and all the other US firms that want to block new laws they don’t like.”

Almost half the investor-state disputes currently before the World Bank’s tribunal at present relate to oil, mining or gas projects.

“Last week the government opened tenders for oil and gas exploration in 23 onshore and offshore sites, when we have weak regulation. You can guarantee those oil firms would threaten to sue if new regulations hit their share value or profitability. Whether they have a good legal case is beside the point. They can tie governments up for years in massively expensive legal battles. Just that threat can ‘chill’ the regulatory decisions.”

Jane Kelsey warned the draft text “should worry the heck out of Labour, if it is serious about reversing National’s privatisation policies and introducing taxes on capital gains or speculative financial flows”.

“Earlier leaks revealed what was being proposed for intellectual property, transparency on pharmaceuticals, and regulatory coherence. We now have another piece of the TPP jigsaw. More is bound to come.”

“National should drop its opposition to a select committee inquiry and allow political parties and citizens to examine what the TPP means for New Zealand”, Professor Kelsey said.

The leak also sends a message to TPP negotiators as a whole that “obsessive secrecy is its own worst enemy – it simply confirms they have something to hide”.

“They should wave the white flag when they next meet in San Diego on 2 July and release all current texts so the whole proposed deal can be subject to full and informed scrutiny.”