Nov 6, 2017

Unkillable corporate rights trade clause needs a bullet in the head

Malcolm Turnbull is almost alone among Trans-Pacific Partnership leaders eager to allow multinationals to sue governments.

Bernard Keane — Politics editor

Bernard Keane

Politics editor

In a co-ordinated push with The Australian, the government has embarked on an attempt to revive the Trans-Pacific Partnership trade agreement and burnish its free-trade credentials.

Later this week, the "TPP 11" -- the TPP signatories minus the United States -- will meet in Vietnam ahead of the APEC leaders' summit to try to agree on a new deal in the wake of Donald Trump killing off US participation. Malcolm Turnbull, backed by Japan, wants to keep the TPP 11 just the way it was when the US was involved, in the hope that a post-Trump administration will want to join in. Other participants are rather less keen on that idea, including our neighbours across the Tasman.

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17 thoughts on “Unkillable corporate rights trade clause needs a bullet in the head

  1. Draco Houston

    I’m shocked the government wants to give handouts to business, shocked!

    1. Kniest Paul

      I am also totally shocked. Who would have thought the Coalition would ever do anything to help out those poor struggling businesses.

    2. Marjorie Carless

      You forget that Mr Turnbull and others of his ilk will one day go back to the businesses they left and this may possibly provide a huge windfall. Future governments will obviously think twice about annoying business just in case they are sued. Mr. Turnbull think again, you are a disgraceful leader of your government and this country.

  2. Rais

    You could only want international corporations to be able to sue sovereign governments over matters of sovereign legislation if you (a) worked for those international corporations at a high level and (b) foresaw a time coming when governments might be elected who wanted to protect their people against the depredations of those international corporations.

    1. leon knight

      Spot on Rais, I can only repeat a comment I made on another article – what a stark contrast we see – NZ has a Leader, we have a Scumbag.

  3. Barnes Graham

    This agreement will mean the death of our Sovereign Rights. Honouring ISDS should be regarded as treason.

  4. MJM

    Australian successfully defended its legislation establishing the plain packaging of cigarettes against an action similar to what would be available under ISDS clauses. It cost $50 million – at least that was the last figure published. Trumble’s barrister mates must be salivating at the thought of more similar actions for them to defend. Lawyers unite!!

  5. Graeski

    Malcolm Turdbull: corporate shill, Australian traitor.

  6. bushby jane

    Makes you wonder what all the fuss is about protecting our borders when Turnbull is happy to give our country away to his corporate mates.

  7. Srs21

    Turncoat and his henchmen have pushed and pushed for this clause. He keeps telling us that it’s for our own good, and brags how wonderful it will be,so to speak. How can he possibly want something that will virtually get the government of the day sued at the whim of a thieving multinational. Labor fought against it and was harshly condemned for letting Australian business down.
    As usual we’re the only country that thinks it’s great.

  8. Wayne Cusick

    The ISDS must also be bad for local companies.
    They have to compete with multinational companies, but if legislation changes they can’t do anything, while the multinationals could take the government to the ISDS court.

    Also, “Those are the provisions that give multinationals the right to sue governments for any policy changes that might affect them, in pro-corporate, non-legal international arbitration forums.”
    If they aren’t legal arbitration forums, could any rulings be ignored by the government.

  9. K

    Okay, at the risk of being contrarian, can I suggest please that we look at this based on evidence and risk?

    As far as I am aware, there has never been a successful claim brought against Australia by a foreign investor pursuant to one of these clauses. The most notable claim actually attempted was the tobacco plain-packaging case, which was dismissed. Aside from that, I doubt that there have been more than a handful of claims seriously threatened, let alone actually commenced.

    That’s because Australian governments, both State and federal, seldom are silly enough to “expropriate” the assets of foreign investors. We, as a nation, haven’t been into nationalisation of private assets since about the 1940s. Sure, we might have come close to other forms of expropriation with things like the proposed mineral resource rent tax (aka mining super-profits tax) and recent threats of an east coast gas reservation, but it is pretty clear that the governments of the day were being careful to set up the schemes with protections for existing investments. That’s just the way that business and government work together here.

    On the other hand, Australian companies investing overseas, particularly in developing countries, don’t have the same degree of protection. Just ask Rio Tinto about how it lost half of its Simandou project in Guinea. Or ask any of the small mining companies who have tried to get projects off the ground in Indonesia but who have been denied permits unless and until the appropriate Minister or bureaucrat has been compensated. Or ask the Australian company White Industries about its 8 years of frustration in trying to enforce an arbitration award against Coal India through the Indian Court system (

    Whilst there are good policy arguments about why the Australian government should not be assuming the risk of claims from foreign investors, I reckon that the risk is quite low compared to the substantial benefit of reciprocal protection for Australian companies investing overseas.

    1. Dog's Breakfast

      “but it is pretty clear that the governments of the day were being careful to set up the schemes with protections for existing investments”

      That is an incredibly naive statement. The tobacco case had to be hard fought for years in spite of specific clauses allowing for decisions based on health reasons.

      The way these provisions have been written will allow companies to sue governments if they change the company tax rate. There are actually very few areas ‘carved out’, in spite of assurances from Mr Robb and others, and even those ‘carved out areas’ will, like the tobacco case, have to be hard fought every time.

      ISDS is a selling of sovereign rights to a rigged tribunal. Forget it, no way, the benefits are unlikely and the costs could be huge. Your examples of third world countries making decisions preventing first world exploitation are hardly a good example to have them. Perhaps we should just stay out of foreign countries if we don’t think their political and judicial systems are sufficiently transparent.

      Bugger ISDS, the world of corporatocracy is already bad enough without them. Watch tonight’s 4 corners to get some insight into how we are being played as a joke by the biggest end of town.

      1. K

        “Perhaps we should just stay out of foreign countries if we don’t think their political and judicial systems are sufficiently transparent.”

        How did that argument go for the Aboriginals in 1788?

        Sorry – off topic but I couldn’t resist.

      2. K

        Levity aside, I would take exception to your comment about a “rigged tribunal”.

        Typically, the claimant picks one arbitrator, the government picks one, and those two arbitrators choose an independent chairperson. The arbitrators are typically ex-Judges of superior courts or leadings international lawyers. A party cannot nominate someone from their own country, or anyone who is not impartial.

        In the White Industries case, the arbitrators were an American, a Singaporean and a Canadian chair, all of impeccable standing (have a look at Charles Brower’s CV online –

        In the tobacco packaging case they were German, Swiss and Canadian – all professors of international law.

        Your comment suggesting that these tribunals can be “rigged” is quite offensive.

  10. Jimbo

    Yet again we see that New Zealand is light years ahead of Australia. They don’t like the ISDS in the way Multinationals want to hold us hostage. We will see tonight on 4 Corners another criminal feature of Multinationals.

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