Pacific

Pacific states have signed 72 trade and investment agreements, 39 of which have been concluded by Australia alone.

Most of Australia’s free trade deals contain investor-state dispute settlement (ISDS) provisions, including those with ASEAN and New Zealand (AANZFTA), China (ChAFTA), India, Indonesia, Korea, Mexico or Turkey.

Following a dispute with Philip Morris over an anti-tobacco law, Australia claimed it would refrain from engaging into new investment agreements with ISDS. However Australia’s more recent agreements such as ChAFTA, the Indonesia FTA, the Hong Kong FTA and the Trans-Pacific Partnership (TPP) include ISDS.

The Philip Morris vs. Australia case is the most well-known dispute to date. When Australia introduced plain packaging for all tobacco products in 2011, Philip Morris initiated a claim against Australia before an arbitral tribunal. In its December 2015 decision, the tribunal dismissed the case, albeit on legal grounds only. Australia spent A$24 million but Philip Morris only paid half, leaving the Australian taxpayers to pay the rest.

The Pacific has been the least targeted region. Only Australian investors have initiated disputes on seven registered occasions, two of which were under the Energy Charter Treaty.

Photo: Dominic Hartnett / CC BY-NC-ND 2.0

(April 2020)

UNSW | 7-May-2019
A former investment treaty between India and Australia allows for a legal claim if the mine doesn’t go ahead, but this shouldn’t deter a federal government, says a UNSW Law researcher.
Kluwer Arbitration Blog | 30-Apr-2019
Instead of categorically dismissing ISDS, the IACEPA clarifies the protection that the States are willing to grant to investors; and procedural rules that they are willing to adopt.
The Guardian | 23-Apr-2019
Florida-based APR Energy sought compensation for treatment of its gas turbines.
AFTINET | 11-Apr-2019
Detailed scrutiny of the text of the recent Indonesia trade deal has revealed that there are no provisions to cancel the old 1993 Indonesia-Australia bilateral investment agreement.
Bangkok Post | 1-Apr-2019
The Australian mining company Kingsgate Consolidated, armed with a US$55-million insurance payout for the closure of its gold mine in Thailand, says it now has the financial means to pursue its arbitration case against the Thai government.
Lexology | 29-Mar-2019
On 26 March 2019, Australia and Hong Kong signed the Australia-Hong Kong Free Trade Agreement and its associated investment agreement.
The Conversation | 27-Mar-2019
Philip Morris, a US company, moved ownership of its Australian operations to Hong Kong to take advantage of ISDS in an Australia-Hong Kong investment treaty.
AFTINET | 27-Mar-2019
The Australia-Hong Kong Free Trade Agreement and separate Investment Agreement signed still give special rights to foreign investors to bypass national courts and sue governments for millions of dollars in international tribunals
Scoop | 25-Mar-2019
Australia’s costs for tobacco case it won show why NZ must get rid of ISDS now.

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