WHAT DOES THE LEAKED CHAPTER SAY ABOUT AUSTRALIA’S POSITION?
The comment consists of a footnote to Section B: Investor-State Dispute Settlement in the original document on page 20.
"29 Section B does not apply to Australia or an investor of Australia. Notwithstanding any provision of this Agreement, Australia does not consent to the submission of a claim to arbitration under this Section. <
The discussion of this footnote by Lori Wallach and Ben Beachy reads as follows:
"Australia alone has indicated that it might not be subjected to the jurisdiction of ISDS tribunals under TPP (footnote 29). No other country has listed an objection to being subject to the private investor-state corporate enforcement regime. This would impose new obligations for Japan, New Zealand, Malaysia, Brunei and Vietnam – the countries involved in TPP negotiations that do not have existing U.S. FTAs. A note in the leaked text indicates that even Australia is considering subjecting its laws and taxpayers to ISDS under the TPP, “subject to certain conditions.” This would impose novel obligations on Australia, as Australia successfully resisted U.S. pressure to include ISDS in the existing U.S.-Australia FTA."(3)
WHAT DOES THIS TELL US ABOUT AUSTRALIA'S POSITION ON THE ISDS SYSTEM?
Australia's position is also discussed in an article entitled "TPP: Australia pushes against ISDS in trade agreement, WikiLeaks reveals" in the blog Computerworld. The article presents comments by Matthew Rimmer, an Australian Research Council Future Fellow and associate professor at the ANU College of Law. He is quoted as saying that Australia’s position is significant.
“It seems that Australia is playing hardball in relation to the Trans-Pacific Partnership. It’s really using it as a bargaining chip and Australia seems to be taking the attitude that they’re not going to agree to the deal unless conditions are satisfied.”(4)
Both of these commentators believe the text tells us that Australia will agree to the ISDS system "subject to certain conditions." But what are these conditions?
A MODEST SUGGESTION AS TO WHAT THESE CONDITIONS ARE
In a statement to the Senate in February this year by Senator the Honorable Penny Wong, the Shadow Minister for Trade and Investment, we find the following sentence:
"And in relation to Investor-State Dispute Settlement (ISDS), I again say what I have previously said: this Government should not sign a Trans-Pacific Partnership which would provide foreign corporations with legal rights that are superior to the rights of domestic businesses."(5)
Is it unreasonable to suggest that at least one of the "certain conditions" referred is the issue raised by Senator Wong. This would mean that the ISDS system is acceptable to Labor if the TPP does not "provide foreign corporations with legal rights that are superior to the rights of domestic businesses." Or, to express this in another way: the TPP is acceptable to Labor if both foreign corporations and domestic businesses have the same rights under the ISDS system.
BRILLIANT POLITICS: LABOR HAS ITS CAKE AND EATS IT TOO
This is by no means a trivial condition. According to the analysis by Lori Wallach and Ben Beachy, foreign investors alone would be granted access to extrajudicial tribunals staffed by private sector lawyers.(6)
At the same time, the statement is a wonderfully evasive condition. To some, it looks like a virtual acceptance of the ISDS, if you ignore the condition. To others, if you focus on the condition - which is totally at variance with the goal of the TPP, to provide competitive advantage to US corporations - it looks like a rejection (if you ignore the "Yes"). Essentially this statement boils down to "Yes, but..." which is a perfect political solution. It doesn't matter from which side of the debate you look at it, the statement seems to agree - sort of - with whatever you might hold.
REMEMBER THIS IS JUST A GUESS
But this is just a suggestion. The Liberal/National Coalition form the government. Perhaps it is time for someone to ask Minister Robb just what the "certain conditions" are for Australia's acceptance of the ISDS system. We still live in a democracy, don’t we?
1. This will be discussed in detail in another article in Australian Voice.
Other Articles in Australian Voice about the TPP:
TPP - THE BIG PICTURE
10 THINGS WRONG WITH THE TPP AND THE INVESTOR-STATE DISPUTE SETTLEMENT SYSTEM
WHAT THE TPP WILL DO TO AUSTRALIA
THE HIDDEN NASTY IN THE TPP: Investor-State Dispute Settlement (ISDS)