The TPPA’s Dirty Little Secret: How US could write NZ’s Laws
13 August, 2014
Press Release: Professor Jane Kelsey: A new website launched today http://tppnocertification.org/ has exposed what University of Auckland law professor Jane Kelsey calls ‘the dirty little secret of the TPPA’.
‘Behind the seemingly benign term “certification” hides an extraordinary power that the US is expected to assert if the Trans-Pacific Partnership Agreement (TPPA) is concluded’.
‘Effectively, the US claims the right to decide what a country’s obligations are under a trade and investment agreement and refuses to bring the agreement into force in relation to that country until it has changed its laws, regulations and administrative processes to fit the US interpretation’, Professor Kelsey explained.
Statements from members of US Congress and the US Trade Representative (USTR) suggest prime targets for New Zealand would be our copyright and patent laws, the foreign investment vetting regime, the procedures by which Pharmac operates, and Fonterra’s ‘anti-competitive monopoly’.
‘The other eleven governments are aware of the certification process and many are concerned. But no one has told the public how the US can effectively redraft our laws.’
Professor Kelsey has co-authored a memorandum that draws on the experience of countries that have been subjected to the US certification process in recent years.
It reveals how US officials have been directly involved in drafting other countries’ relevant laws and regulations to ensure they satisfy US demands. This includes reviewing, amending and approving proposed laws before they are presented to the other country’s legislature. The USTR even demanded that Guatemala implement new pharmaceutical laws that were not in the formal text, and which the government had strenuously resisted during the negotiations.
Communications within the Office of the USTR on the Peru US Free Trade Agreement were secured under the US Freedom of Information Act and show how brutal the US can be: ‘We [USTR] have to redraft the regs and the law – Peru needs to accept them without changes’.
Similar communications might never be released under New Zealand’s Official Information Act, because they involveinformation entrusted to the government in confidence from another government.
‘In other words New Zealanders, including MPs, might never know that the US was involved in writing our laws and demanding the right to sign them off even before Parliament gets to see them’, Professor Kelsey warned.
‘Everyone knows the US is driving the TPPA. But agreeing to a final text, in the knowledge that the US will then play the certification card, would mean conceding the right of US officials to oversee the making of New Zealand’s laws and regulations.
’ READ ABOUT THE POLITICIANS PUSHING THIS AGENDA: http://dirtypoliticsnz.com
Bryan Gould: Right to be troubled about secret partnership
29 September, 2014
Getting lawyers to agree on anything is notoriously difficult. So when 100 retired judges, prominent legal academics, lawmakers and leading practitioners from New Zealand and overseas put their names to something, it's time to sit up and take notice.
What is it that raises the concern of so many eminent lawyers? It is the prospect that our Government is about to trade away - in secret - an important part of our powers of self-government.
The Trans-Pacific Partnership (TPP) being negotiated is presented as a straightforward free trade agreement. But it is clear that the Americans will insist (as they have done with other similar agreements) that the agreement should allow foreign corporations to stop our Government (or any future government) from changing New Zealand law in a way they think might undermine their value.
Private companies from the other eight countries, even though not themselves parties to the agreement, would be able to sue our government, not in our own courts, but in private tribunals set up specifically for the purpose (and existing practice shows that the arbitrators in such tribunals can be judges one day and lawyers for litigants the next).
Under these arrangements, an American corporation, for example, would be given far more extensive rights against our government than any New Zealand company would ever have. It would mean that a future government, perhaps elected to change policy in an area like environmental protection or health and safety (smoking comes to mind), could be threatened with a crippling lawsuit unless it backed off.
The rights protected by these provisions go far beyond real property rights and include financial instruments, mining concessions, intellectual property, public-private partnership contracts and even market share.
Nor is it just the Government that would be hog-tied. A particular worry for lawyers is that our courts, too, could be overruled. The foreign investment tribunals have decided that courts are part of a country's government (riding roughshod over any doctrine of the separation of powers) and that they, too, must comply. Even if our courts had upheld the validity of a law properly passed by Parliament, that decision could be challenged by a foreign corporation alleging it breached their rights under the TPP. Even a jury decision in private litigation could be challenged and lead to the Government paying millions in compensation.
In a recent case brought by Chevron, for example, a tribunal ordered the Ecuador Government, in defiance of its constitution, not to enforce a ruling by Ecuador's Appeal Court that Chevron must pay $18 billion to clean up toxic waste in the Amazon Basin.
The concerns expressed by the 100 signatories to the lawyers' open letter released today do not arise from mere speculation. Provisions like those causing concern have a well-established track record. When there were only a few cases, no one took much notice. But as American and European companies investing and trading overseas have increasingly enforced the rights arising from these treaty provisions, concerns have grown.
And with good reason. There has been an exponential increase in the numbers of such cases brought by (largely American) foreign corporations against governments which are parties to agreements similar to the proposed TPP. More than $675 million has been paid out in awards made by the special tribunals in cases involving US companies alone.
What adds to the concern is that the negotiations on these arrangements are being conducted by our Government in secret. We are not allowed to know what is being discussed, and by the time the TPP is presented to Parliament, the deal will have been done. There will be no meaningful debate or select committee scrutiny. We won't even be allowed to see what trade-offs the Government has made until four years after the text has been signed.
Yet the concessions made in secret by today's Government would permanently lock New Zealand into a marketplace controlled and dominated by foreign corporations. Voters would be left without any possibility of redress.
When the Prime Minister was asked about these issues when the negotiations began some months ago, he described fears of special legal rights for foreign investors as "far-fetched" and pooh-poohed any concerns. Yet the Australian Government has been quite open in declaring that it will oppose any such provision, basing itself on the Australian Productivity Commission's warning that it would have no economic justification and carry policy and fiscal costs.
Our own Government, by contrast, has demonstrated in its dealings with overseas corporations like Warner Bros, Sky City and Shanghai Pengxin how far it is prepared to go to accommodate overseas business interests. We have good reason to fear that the TPP will continue that process.
We have already sold off into foreign ownership a higher proportion of our national assets than any other developed country. The TPP could mean that control over what remains, now and into the future, would in effect be handed over to international corporations.
This is a heavy price to pay for a trade deal in which our partners, at most, commit to buy what they want to buy anyway.