Apr 1, 2015

New TPP leak reveals how we’re trading our sovereignty for cheap tariffs

WikiLeaks has published the secret investment chapter in the Trans-Pacific Partnership. Dr Matthew Rimmer, associate professor at ANU College of Law, explains its insidious implications.

Last Wednesday, WikiLeaks once again broke the secrecy surrounding the Trans-Pacific Partnership (TPP), releasing the draft text of the investment chapter of the Pacific Rim Treaty. WikiLeaks founder Julian Assange issued a dire warning about the agreement:

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22 thoughts on “New TPP leak reveals how we’re trading our sovereignty for cheap tariffs

  1. Jim O'Pines

    Thanks for being one of the few publications to provide coverage on this deeply unsettling issue, Crikey.

    As much as I find these ISDS clauses sinister, the secrecy surrounding the TPP is understandable (though not the media lethargy on reporting on it). To know these clauses is to dislike them. Lefties and righties alike would be up in arms if they were front page news: lefties at the hollowing out of regulatory standards that is sure to follow litigious US companies through the door, and righties (one would hope) for the deep damage these clauses have the potential to inflict on the integrity of our judicial system, and our freedom to regulate as we please.

    These clauses were supposed to provide protection for companies operating in dodgy jurisdictions. Now they are more often than not a means of circumventing regulation even in places where domestic courts are perfectly capable of arbitrating fairly. Canada has had an unhappy and very expensive time with these clauses as a result of the NAFTA. Australia is getting sued by Phillip Morris for the plain packaging business. Germany is being pursued by a Swedish power company for banning nuclear power after the Fukushima disaster. El Salvador is being taken to the cleaners by a Canadian gold mining company for daring to declare a moratorium on mining licences.

    Companies have pushed ISDS clauses well beyond their original remit and my money’s on Australia getting intimately acquainted with shady international arbitration tribunals in the not too distant future.

  2. Scott

    “The investment chapter serves to boost the corporate rights and powers of multinational companies with an investor-state dispute settlement mechanism — at the expense of democratic governments and domestic courts.”

    Oh come on. It’s just providing protection to the foreign investor that they will be treated the same as a domestic investor…and you know, its less about Australia and more about those countries that don’t have a good track record of the rule of law. That is why we didn’t need investor protection with Japan, but we definitely needed one with China.
    No one will invest in countries like Vietnam, Peru, Chile or Mexico without the protections the TPP will offer with these investment clauses. Its for the rich countries, like the US, Australia, Japan and Canada to ensure that the money that is invested isn’t just pocketed by the governments of those smaller nations facilitated by a compliant judiciary.

  3. Interrobanging On

    ‘It’s just providing protection to the foreign investor that they will be treated the same as a domestic investor’

    What are you talking about, Scott? It gives them much more ‘protection’ as you euphemistically put it. As I understand it, Philip Morris went through the courts in Australia to the High Court, before it did its corporate restructure to suddenly be a Hong Kong company to try on the ISDS rort.

    No domestic company has the extra step to try to trump the High Court by shadowy tribunal, hence the deliberate shift to being a selected foreign company by Philip Morris. You might read the last paragraph again.

    That plain packaging is lawful, constitutional, for good motives (public health) and effective is irrelevant. That is the danger.

    ISDS is pointless for us, even if the old excuse applies somewhere or other. It is only damaging. And you are bit naive to imply there is no corporate bastardry out there (not only tobacco firms), nor full intent by the USA in pushing this because they will benefit most at the expense of others.

    You might be surprised to know that there is lots of foreign investment in Vietnam, say. It is rising fast too.

  4. Andrew Craick

    Thankfully its getting traction after last nights Lateline.

    The debate was very amusing with Alan Oxley. What a waste of time that guy was. Most ugly type of corporate PR shill. Just spent the whole time to downplay any issues with it. Has he even seen it ? Apparently has a history of PRing for the worst of the worst:


    You missed the larger issue. You are aware that the Australian government is currently being taken to Court in Hong Kong (of all places) because of our plain paper packaging laws under similar agreements ?

    That is the exact problem with the TPP as it stands. It actually gives corporations (mostly American) the power to take on larger countries like Australia and Canada. If you think we’re swimming with the big boys you’re out of your mind. We are the target. This is just a way for the US to standardize global laws for their own interest. Not ours.

  5. James O'Neill

    “Senator Peter Whish-Wilson of the Australian Greens emphasised that the WikiLeaks publication reinforced his call for a prohibition on investor clauses in trade and investment agreements. He said such clauses “represent a clear threat to the sovereignty of our nation, simply in order to satisfy powerful corporate interests and their deregulation agendas”.

    That says it in a nutshell. This is one of the most insidiously dangerous treaties that Australia is involved in. It is no wonder that the government has been operating in extreme secrecy, and the woeful media have let them get away with it for too long.

  6. Scott

    Mate, there is a legitimate concern around plain packaging. I thought at the time that plain packaging legislation was acquiring trademarks and Intellectual property without compensation. I still do.

    Sure, High Court said it was fine to do this on health of the populous grounds, based on our constitution. And governments can still do it. Phillip Morris will not be able to stop the Government from doing it, regardless of whether they win the court case or not (they are trying to, but the court will throw that out 100%). The issue is whether the tobacco companies should be compensated for the loss of IP/trade marks as a result of the legislation.

    I think they should be. And that is what the investor provisions are all about. Not stopping Governments from acting. Only compensating investors if those actions take property and assets away from their investment without fair compensation for the loss.

  7. Charlie Maigne

    @Scott, Phillip Morris ran the ‘acquisition of property’ argument in the highest court in Australia and lost – the High Court ruled by a 6-1 majority that the legislation did not constitute an acquisition of property. If they succeeds under the Hong Kong treaty, it would be on a basis, and in a forum, not available to domestic investors.

    Far from ensuring that foreign investors have the same protection as domestic, the ISDS regime in the Hong Kong treaty – a treaty between two developed countries with respected systems of law – is being (ab)used as an avenue for recourse that is exclusive to foreign investors. Phillip Morris had to restructure just to gain access to it. So let’s not kid ourselves that any ISDS mechanism in the TPP is there to protect our companies from a rogue government.

  8. Andrew Craick


    It ends up being exactly the same thing. After this is signed and our local neo-cons get kicked out at the next election, every time the left or center tries to implement any type of protections that disadvantage US companies the opposition will bleat and cry and tell the government of the day ‘you can’t do that because it will cost you billions’ you are ‘economic vandals’ (we have stitched you (forever)). The law that should have got made never gets made.

    OK you agree about IP but what about everything else ? Environment, labor, medicine, patents or any new technology that comes up in the next few lifetimes ?

    Governments should not be able to enter into secretive contracts during their term that will effect their constituents forever. Imagine the secretive Victorian highway contract debacle being taken out on the international stage because one government is only interesting in leaving a nasty political time bomb for the incoming government with the tax payers footing the bill.

  9. Neutral

    The TPP is an apprenticeship for our elected Lib Leaners and their parasitic public servants to score boom points for ‘think tanks’ and lobby jobs once they are de-elected and rightsized by the ‘new’ lot of elected Lab Leaners.

  10. klewso

    After watching Lateline last night :-
    With typical Pollyanna propaganda, the main beneficiaries of this are going to be those minorities in markets that are going to be opened – while everyone else is going to be at risk of paying for it in some manner not yet realised?
    Huge companies with huge bank resources (based on profits, which can be raised to pay for such suits, by raising prices) can sue government for impeding on their trade, when those “unfair” governments enforce their laws enacted to protect that country’s people and environment? What The Frack?
    [All under the ever-vigilant eagle eye of the country that gave us the GFC and NSA? The country where none of those responsible for the GFC that ruined so many lives around the world have gone to gaol?
    So what could possibly go wrong?
    And anyway if something unforseen does go wrong, we’ll all be in the same boat … or a smaller, but similar one, to Uncle Sam’s?]
    But it’s all right, because both Labor and the Limited News Party said it was all right?……
    Pssst have you ever listened to what they think of each other’s judgement and fiduciary responsibility management skills?

    [And has Uncle Rupert’s viewsmedia (with their dominant US interest) been discussing it …..? Impartially? ie in a manner not as PR mitigation assuagment “petroleum jelly” managers?]

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